MISSISSIPPI
LAW JOURNAL
CORRECTIONS: A SYMPOSIUM
ON PRISON REFORM
FOREWORD
Honorable J. Braxton Craven, Jr.
United States Circuit Judge, United
States Court of Appeals, Fourth Circuit
PSYCHIATRIC VIOLENCE AGAINST PRISONERS: WHEN
THERAPY IS PUNISHMENT
Edward Opt on
Associate Dean of the Graduate School,
The Wright Institute, Berkeley, California
THE "CLOSING" OF O WING AT SOLEDAD PRISON:
REFLECTIONS ON THE USE OF LOCK-UP
Fay Stender
Former Director of the Prison Project
in San Francisco, California
PSYCHIATRY IN CORRECTIONS: A VIEWPOINT
Charles E. Smith, M.D.
Professor at University of North
Carolina Medical School
MISSISSIPPI'S PRISON EXPERIENCE
David Lipman
Director, Mississippi
Prisoners Defense Committee
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VOLUME 45 JUNE 1974 NUMBER 3
Copyright ©1974, Mississippi Law Journal
TABLE OF CONTENTS
CORRECTIONS: A SYMPOSIUM
ON PRISON REFORM
Foreword Honorable J. Braxton Craven, Jr. 601
Psychiatric Violence Against Prisoners:
When Therapy is Punishment . . Edward M. Opton, Jr. 605
The "Closing" of 0 Wing at Soledad Prison:
Reflections on the Use of Lock- Up Fay Stender 645
Psychiatry in Corrections: A Viewpoint
Charles E. Smith, M.D. 675
Mississippi's Prison Experience David Lipman 685
Prison Abolition or Destruction is a
Must! Louis X (Holloway) 757
COMMENTS
Stop and Frisk in Mississippi: Is It Legal? Should It
Be? A Comment On Keys v. State 763
Criminal Sentencing: An Overview of Procedures and
Alternatives 782
RECENT DECISIONS
Constitutional Law — Search and Seizure — Full Search
of Traffic Violator Incident to Custodial Arrest
is Reasonable Under the Fourth Amendment
(United States v. Robinson, U.S. 1973) 800
Federal Courts — Three-Judge Courts — Applicability
of Section 2281 Expanded to Declaratory Judg-
ments Which Are Injunctive in Nature (Sands v.
Wainwnght, 5th Cir. 1973)
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FOREWORD
J. Braxton Craven, Jr.*
Human institutions evolve. One of Jesus' disciples could scarcely
be expected to recognize the state of His catholic church today. Usually
change is for the better, but sometimes institutions evolve in such a way
that the original purpose is lost or obscured. This kind of destructive
evolvement can afflict institutions originally created for noble purposes.
In re GaulV recites the regressive turning inward of a juvenile court
system that now sometimes denies fundamental rights to the very chil-
dren it was created to benefit. Nineteenth century protective legislation
for women is now viewed by some as intolerably restrictive and paternal-
istic.
It is widely suggested that there are few penitents in penitentiaries.
If that be true, then the institution of the prison has turned nearly 180
degrees and no longer serves its intended purpose — except for the
exceedingly few within prison walls who truly repent, meditate upon
their derelictions, and are resolved to reenter society as good citizens.
It is hard to judge others except by one's own standards and values.
Penitentiaries were an enlightened substitution for a regime of inhu-
mane corporal punishment in which the hand of the thief was cut off',
the adulterer branded with a hot iron, and the misdemeanant flogged
with a cat-o'-nine-tails or subjected to the rack and the screw. With our
Puritan heritage it is not surprising that enlightened men of good will,
truly believing in the therapy of confession and penitence, decided to
risk permitting the thief to keep his hand, and instead incarcerated him
to meditate upon and repent his sin against society.
The penitentiary was a vast improvement over maiming offenders
in the name of the state. But if there is now little penitence in the
penitentiaries, it is time to reexamine the institution and see whether
it can be restored, and if not, to seek other alternatives. The goal re-
mains the same: to protect society from destructive elements within it,
with the least possible destruction of the offender.
My nomination for candid quote of the year goes to Norman A.
Carlson, Director of the Federal Bureau of Prisons, who said: "The only
thing we can say with any degree of certainty is that we still know very
little about how to deal effectively with offenders. It is ludicrous to
pretend otherwise." It is not surprising that we are confused, because
*United States Circuit Judge, United States Court of Appeals, Fourth Circuit. A.B.
1939, Duke University; LL.B. 1942, Harvard.
'387 U.S. 1 (1967).
601
602 MISSISSIPPI LAW JOURNAL [vol. 45
society has never been able to agree upon the purposes of criminal
sanctions. Four purposes are frequently suggested, the first of which is
the most noble, and the second of which is important with respect to
crimes of violence. As for number three, no one knows whether it works,
and the best that can be said for number four is that it continues to well
up from springs deep within human nature.
(1) Rehabilitation, to aid the offender in adjusting to law-abiding
society;
(2) Incapacitation by confinement, to prevent an offender who is
likely to repeat from committing other offenses;
(3) Deterrence, to discourage other offenders by making an example
of one; and
(4) Retribution.
I believe the time is now ripe for a national effort to increase reform
and rehabilitation of offenders. The idea is fueled by practical common
sense and supported by society's self-interest. No matter how many
millions it may cost to educate and train the prison population for
employment, it seems beyond argument that it would be far less than
the cost of recurrent crime and the cost of keeping people penned up.
To our misfortune, leniency from the bench and liberality from the
parole board requires much more moral courage than does harshness.
Perhaps because we are a young country, we continue to treat persons
convicted of crime, especially crimes against property and offenses
against moral concepts, more harshly than any other civilized nation.
Legislatures seem unable to resist filling criminal codes with their own
notions of moral behavior. I devoutly wish that prosecutors, police, and
prison administrators were relieved of the obligation to police morals
and freed to concentrate their efforts on offenders who have committed
"real" crimes; i.e., those of violence and serious deprivations of prop-
erty. "Victimless" crimes are not susceptible to the criminal sanction.
For example, alcohol and other drug use or abuse, including marijuana,
can best be left to the influence of psychiatry, medicine, and the church.
When I became a United States circuit judge, I expressed relief that
I would never again have to sentence another human being to a peniten-
tiary. I had done it for 10 years — 5 years as a judge of the Superior Court
of North Carolina and 5 years as a United States district judge — and I
had had enough. I am utterly convinced that no judge, not even a Solo-
mon, is wise enough to determine precisely how long, or even whether,
a man ought to be in prison.2 Parole boards can determine duration
l\ recently had occasion to sit as a district judge to resentence a bank robber I had
sentenced in 1966. United States v. Miller, 361 F. Supp. 825 (W.D.N. C. 1973). is an
exposition of my doubts as to the qualifications of judges for the sentencing process.
1974] FOREWORD 603
better than judges, not because they are smarter, but because they have
more information about the offender and because the information they
have is more reliable; e.g., how he gets along with other prisoners, his
attitude toward prison employees, willingness to work, and general be-
havior. Because of this I used to think all sentences ought to be indeter-
minate. But now I am not so sure. The indeterminate sentence, like the
penitentiary itself, was intended to be an instrument of enlightened
reform and a boon to the offender. But as presently administered, I have
come to wonder if the indeterminate sentence is not a cruelty device. If
I were myself confined at the Atlanta Penitentiary, I think I might well
prefer to cross off the days on a flat 3-year sentence than to face the
uncertainty of a not-less-than-l-year-nor-more-than-10-year sentence.
Finally, a word about disparity of punishment — the greatest single
demoralizing factor in prison. When I was a sentencing judge, I used to
wish fervently that my imprisonment decisions could be reviewed by my
superiors. Sooner or later some sort of appellate review of sentences is
inevitable. We are the only important civilized country in the world that
permits one judge finally and irrevocably to determine punishment — so
long as it is within the statutory maximum. Senseless disparity is intol-
erable. For example, William J. Zumwalt in an article for the American
Judicature Society' reports that in my own circuit, the courts in the
Eastern District of Virginia are "consistently more severe than any other
Fourth Circuit court averaging, offense by offense, a full year above the
standard Circuit sentence."4 The Zumwalt article also suggests that if
one is disposed to commit a crime in Oklahoma, it is wise to choose the
Eastern District rather than the Northern District because the average
sentence in northern Oklahoma is 44 months longer.
I highly commend the Mississippi Law Journal for the imaginative
concept and superb implementation of this special issue of the Journal.
I am acquainted with many of the contributors. These are people who
can think creatively and innovatively and who dare do it. The present
situation of high crime and harsh punishment's complete failure to solve
it imperatively calls for innovative and creative study. I hope that no
suggestion will be declared out of bounds because it is novel and has not
been tried. I used to think that I should either send an offender to prison
or turn him loose and that putting special conditions upon probationary
release was too much an invasion of personal liberty and was perhaps
even unconstitutional. I now think such a notion needs, at the least,
reexamination and that it might be a good idea to try formulating detri-
ments, deprivations, and controls short of imprisonment. For example,
'Zumwalt, The Anarchy of Sentencing in the Federal Courts, 57 Judicature 96 (1973).
'Id. at 97.
604 MISSISSIPPI LAW JOURNAL [vol.45
the alcoholic offender might be compelled to seek psychiatric help or
even required to attend AA meetings, although making him attend
church, even his own church, [I have known judges who did it] might
well offend the first amendment. Instead of imprisoning a high school
offender, might it be better to deprive him of "wheels" and arrange for
his weekends to largely consist of picking up beer cans and trash from
streets and highways?
PSYCHIATRIC VIOLENCE AGAINST
PRISONERS: WHEN THERAPY IS
PUNISHMENT*
Edward M. Opton, Jr.**
I. THERAPY-AS-PUNISHMENT
When is torture not torture?
When it is aversion therapy.'
When is brutality legal?
When it is behavior modification.2
*Portions of this article were presented at a symposium of the American Psychology-
Law Society, "Violence by Public Officials," at the Annual Meeting of the American
Psychological Association, Montreal, August 30, 1973, under the title, Coercive Psycholog-
ical and Psychiatric Treatment as a Rationalization for Official Violence. I am grateful
for criticisms of that manuscript by Fay Stender, Lillian Rubin, and other colleagues. The
material in this article will appear in different form in A. Scheflin & E. Opton, The Mind
Manipulators (1975).
**B.A. 1957, Yale College; Ph.D. 1964, Duke University; Senior Research Psycholo-
gist and Associate Dean of the Graduate School, The Wright Institute, Berkeley, Califor-
nia.
'Mattocks & Jew, Assessment of an Aversive Treatment Program with Extreme
Acting-Out Patients in a Psychiatric Facility for Criminal Offenders (unpublished report,
California Medical Facility, Vacaville, on file with the University of Southern California
Law Library, undated). This report differs from the manuscript submitted to Archives of
General Psychiatry in April 1970. A similar program at Atascadero (Cal.) State Hospital
was reported in Reimringer, Morgan, & Bramwell, Succinylcholine As A Modifer of
Acting-Out Behavior, Clinical Medicine, July 28, 1970, at 28. For allegation that aversion
therapy in prisons is torture see text accompanying note 53 infra. For a critical discussion
see Note, Conditioning and Other Technologies Used to 'Treat?' 'Rehabilitate?' 'Demo-
lish?' Prisoners and Mental Patients, 45 S. Cal. L. Rev. 616, 629-31 (1972) [hereinafter
cited as Conditioning]. For cases alleging aversion therapy is cruel and unusual punish-
ment, see Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973); Mackey v. Procunier, 477 F.2d
877 (9th Cir. 1973). For the historical tradition of imposition of torture under guise of
therapy, see T. Szasz, The Manufacture of Madness 147-51 (1970) [hereinafter cited as
Szasz]. For use of aversion therapy outside prisons, see Kushner & Sandler, Aversion
Therapy and the Concept of Punishment, 4 Behaviour Research & Therapy 179 (1966);
and for specific instances, see e.g., Ludwig, Marx, Hill & Browning, The Control of Violent
Behavior Through Faradic Shock, 148 J. Nervous & Mental Disease 624 (1969); Ramey,
Use of Electric Shock in the Classroom: The Remediation of Self-Abusive Behavior of a
Retarded Child, 1 Behavioral Engineering 4 (No. 2, Fall-Winter 1973-74). It may be
indicative of standards in the aversion therapy area that in Mr. Ramey's article, which
reports an experiment on an 11-year-old boy, the shock level was set, without preliminary
testing, at the maximum intensity of which the device was capable. Mr. Ramey did not
know or attempt to measure the shock intensity, but estimates it at 200 volts with an
average current of 4 milliamperes. Id. at 9. No mention is made of consent for this
experiment, informed or otherwise, from the child or his parents.
2Neier & Mares, A Program to Cripple Federal Prisoners, 21 The New York Review
605
606 MISSISSIPPI LAW JOURNAL [vol. 45
When is capital punishment imposed without trial?
When the lobotomist's knife slices into the brain.3
When is brainwashing morally justified?
When it is done for a good purpose.4
When is punishment by the State not regulated by law?
When it is prescribed by a psychiatrist.3
According to some partisans of prisoners' rights, these conundrums
fairly summarize an alarming trend toward the misuse of psychiatry to
sanction acts of violence against prisoners. Representatives of defendant
institutions in cases involving these issues say that such characteriza-
tions are gross distortions," that litigation is an unwarranted attempt to
interfere with medical discretion,7 and that denial of necessary medical
treatment would be the real cruelty.8 M'hile the outcome of some recent
of Books 23 (March 7, 1974). For challenges to allegedly brutal behavior modification
programs, see Sanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973); Adams v. Carl-
son, 488 F.2d 619 (7th Cir. 1973). See generally Wexler, Token and Taboo: Behavior
Modification, Token Economies and the Law, 61 Calif. L. Rev. 81 (1973).
'For the allegation that psychosurgery is partial capital punishment, see Breggin, The
Return of Lohotomy and Psychosurgery, 118 Cong. Rec. E1602 (daily ed. Feb. 24, 1972),
E3379 (daily ed. Mar. 30, 1972). See also Kaimowitz v. Department of Mental Health,
Civil No. 73-19434-AW (Wayne County, Mich., Cir. Ct., July 10, 1973), exerpted at 42
U.S.L.W. 2063 (July 31, 1973).
4McConnell, Criminals Can Be Brainwashed— Now, 3 Psychology Today 14 (April,
1970); Schein, Man Against Man: Brainwashing, 8 Corrective Psychiatry & J. Social
Therapy 90 (1962).
•Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968); R. Schwitzgebel, Development
and Legal Regulation of Coercive Behavior Modification Techniques With Offenders
37 (Dept. of Health, Education, and Welfare Pub. No. (HSM) 73-9015, 1971);
Conditioning. See generally Szasz.
HN. Carlson, Director, Federal Bureau of Prisons, Statement Before the Subcomm.
on Courts, Civil Liberties, and the Administration of Justice, of the House Comm. on the
Judiciary, Concerning 'Behavior Modification' and the Federal Center for Correctional
Research, Butner, North Carolina 4 (Feb. 27, 1974).
7"The definition of treatment and the appraisal of its adequacy are matters for medi-
cal determination." Council of the American Psychiatric Association, Position Statement
on the Question of Adequacy of Treatment, 123 Am. J. Psychiatry 1458 (1967). This was
a response to, and criticism of, Chief Judge Bazelon's opinion in Rouse v. Cameron, 373
F.2d 451 (D.C. Cir. 1966).
H"The banning of these [behavior modification] procedures will result in a regression
to outmoded, unsystematic forms of inhumanity in prisons . . . [and] will tend to stifle
the development of humane forms of treatment that provide the offender the opportunity
to fully realize his or her potential as a contributing member of society." American Psy-
chological Association press release, Washington, D.C. (Feb. 15, 1974). Commenting on
Anectine aversion therapy (Mattocks & Jew, supra note 1), the Assistant Superintendent.
Psychiatric Services (now Superintendent) of the California Medical Facility [prison] at
Vacaville wrote: "In my opinion, prisoners have a right to the best medical care, including
1974] PSYCHIATRIC VIOLENCE 607
litigation has favored the plaintiff prisoners' position,9 this litigation
concerns only a few especially egregious abuses of psychiatric power.
The bulk of psychiatrically sanctioned punitive violence against prison-
ers remains untested in the courts, or tested and legitimated by the
courts.10 It is the thesis of this article that the disinclination of the courts
to grapple with the problems of violence by psychiatrists against prison-
ers represents a blind spot, the logical center of which is the insistence
on a distinction between treatment and punishment.
The distinction is crucial, for punishment is regulated both by law
and by the all but universal power of a common morality: "let the
punishment fit the crime." The varieties, degrees, durations and cir-
cumstances of legal punishments are specified by law, circumscribed by
administrative rules, and subject to scrutiny by the courts, especially
with respect to constitutional requirements of due process and prohibi-
tion of cruel and unusual punishments.
Treatment, on the other hand, is a medical term, meaning "man-
agement in the application of remedies; medical or surgical application
or service."11 Since it is a "service" for the benefit of a patient, one does
not ordinarily ask whether a treatment is cruel and unusual or whether
it has been imposed through due process. Courts have been most reluc-
tant to entertain such questions, and it should not be surprising, there-
fore, if prison administrators have from time to time labeled as "treat-
ment" acts which, if called "punishment," would be instantly recog-
nized as of dubious morality or legality. To label acts "treatment" re-
quires the cooperation of medical personnel; thus do psychiatrists and
psychologists become involved in violence12 against prisoners.
in some cases, new treatments as they become available in the community. Otherwise,
one is in the position of keeping people out of free society because of their dangerous
behavior. . . ." Clanon, Letter to the Editor, 1 Bull, of the Am. Academy of Psychiatry
& the L. 61, 68 (1972).
"Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973); Kaimowitz v. Department of Mental
Health, Civil No. 73-19434-AW (Wayne County, Mich., Cir. Ct., July 10, 1973). In San-
chez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973), the Federal Bureau of Prisons has
announced its intention to terminate the challenged "START" behavior modification
program for "economic" reasons, perhaps anticipating an unfavorable ruling. Cf. Carlson,
supra note 6.
"E.g., Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968).
"The Oxford Universal Dictionary (3d ed. 1955).
l2Not all punishment is violent, but those punishments for which the cooperation of
psychiatrists is sought or accepted generally are violent, as no special medical sanction is
needed for non-violent punishments. The meanings of "punishment" and "violence" are
important here. Punishment by public authority is "to cause (an offender) to suffer for
an offence." Violence is "the exercise of physical force so as to inflict injury on, or cause
damage to, persons ... or forcibly interfering with personal freedom." "Violent" means
"using physical force or violence, esp. in order to injure, control, or intimidate others."
The Compact Edition of the Oxford English Dictionary (1971).
608 MISSISSIPPI LAW JOURNAL [vol. 45
Mental health professionals seldom if ever think of themselves or
their colleagues as participants in violence against prisoners.13 Rather,
they think of themselves as treating prisoners. However, the difference
between a violent punishment and a medical treatment lies not in the
act itself, but in the intent of the actor. When a medical procedure is
done at the request of a patient and for his benefit, it is a treatment.
When the identical medical procedure is done against a person's inter-
ests or will, it is either a battery, if lacking legal sanction, or a punish-
ment, if imposed by legal authority. For example, when a surgeon am-
putates a diseased hand in order to prevent the spread of gangrene, he
performs a medical treatment. Were he to remove his rival's hand in a
fit of jealousy, he would commit a battery. If he were a Libyan surgeon
amputating a thief's hand in accordance with his nation's laws,14 as duly
ordered by a judge, he would be the instrument of an official punish-
ment. Amputation with the intent of treating gangrene is not violence,
but amputation with the intent of injuring a rival would be a violent
battery, and amputation with the intent of discharging a court-ordered
punishment would be legally sanctioned violence carried out by medical
personnel.15 Such legally sanctioned, punitive violence, administered by
psychiatrists or under their aegis, is increasingly common in American
prisons. The use of mind-altering drugs for punishment or control is the
most common instance; behavior modification programs are rapidly
multiplying. Aversion therapy is not uncommon, psychosurgery is done
occasionally, and allegations have been made that programs much like
thought reform16 ("brainwashing") as carried out on American prisoners
during the Korean War and in the People's Republic of China during
the years following 1949, are presently being employed.
Both legal and psychiatric writers have long maintained a distinc-
tion between treatment and punishment, a distinction which this article
will argue is specious. Thus, in Sanchez u. Ciccone,17 plaintiffs alleged
that the "START" (Special Treatment and Rehabilitative Training)
program was a punishment; the Federal Bureau of Prisons replied that
13Szasz, supra note 1, at 150-51, and passim, is a notable exception. Although primar-
ily concerned with mental patients, Szasz considers the distinction between involuntary
mental patients and prisoners to be a euphemistic legalism.
I4"A new law in Libya provides for amputation of the right hand for stealing, and the
left foot for armed robbery — but permits it to be done by a surgeon, using anesthetics."
Hilton, Marcus Welby, Executioner, 3 The Hastings Center Report 16 (1973).
l5The fact that a punishment may be legal does not mean it is less properly classified
as violence. All governments attempt to monopolize violence and to exercise it through
military, police, and penal branches.
I6R. Lifton, Thought Reform and the Psychology of Totalism; A Study of
"Brainwashing" in China (1961).
l7No. 20182-4, 3061-4 (W.D. Mo. 1973).
1974] PSYCHIATRIC VIOLENCE 609
it was a behavior modification treatment, a recognized form of psychol-
ogical therapy. Both sides assumed that START must be the one or the
other. In Schwitzgebel's monograph,18 regulation of coercive therapies is
discussed almost solely in terms of treatment; punishment and its regu-
lation is scarcely mentioned. A recent law review article19 on cruel and
unusual punishments cites a number of recent cases in which complete
lack of treatment has been found unacceptable by the courts, but not a
single case in which a treatment has been ruled an unconstitutionally
cruel and unusual punishment.20 Morris comes close to seeing an ident-
ity between some treatments and punishment when he writes: "[E]arly
[psychiatric] treatment methods were barbaric and the mentally ill
often suffered as much as the prisoners who were being punished. . . .
For the first time, the treatment accorded the mentally ill can be clearly
differentiated from the punishment accorded criminals."21 However,
Morris does not raise the question whether punitive treatments ought
to be legally restricted as punishments. Brodsky has a section called
"Clinical Injustice" in his book, but the injustices discussed are limited
to misdiagnosis; mistreatment is not considered.22 Aronson23 comes very
close to noting the congruity between some psychiatric treatments and
punishment, and comments on the due process implications:
An examination of the purposes and effect of "civil" commitment re-
veals that unless effective treatment is provided such commitment
would be criminal in nature ....
Clearly, where the primary purpose of commitment is punishment,
the proceedings are criminal.
Other traditional aims of punishment are also present. . . . [T]o
the extent that commitment incarcerates individuals indefinitely —
possibly for life — on the possibility of future dangerousness, it consti-
tutes a form of preventive detention and is thus penal in nature.
"*R. Schwitzgebel, supra note 5.
l!,Note, Recent Applications of the Ban on Cruel and Unusual Punishments: Judi-
cially Enforced Reform of Nonfederal Penal Institutions, 23 Hastings L.J. 1111, 1120-23
(1972).
2"But cf. Wyatt v. Stickney, 344 F. Supp. 373, 380 (M.D. Ala. 1972): "Patients have
a right not to be subjected to treatment procedures such as lobotomy, electro-convulsive
treatment, adversive [sic] reinforcement conditioning or other unusual or hazardous
treatment procedures without their express and informed consent . . . ." Will Judge
Johnson's conclusion be extended to prisoners?
21Morris, "Criminality" and the Right to Treatment, in The Mentally III and the
Right to Treatment 109, 110-11 (Morris ed. 1970) (citations omitted) [hereinafter' cited
as Right to Treatment].
22H. Brodsky, Psychologists in the Criminal Justice System 143-44 (1970).
2:iAronson, Should the Privilege Against Self-incrimination Apply to Compelled Psy-
chiatric Examinations, 26 Stan. L. Rev. 55 (1973).
610 MISSISSIPPI LAW JOURNAL [vol.45
And where no treatment is provided, commitment would seem to in-
clude a retributive element as well.
Other deprivations attendant to commitment may also mandate
criminal due process safeguards. . . . [P]unishment may also be in-
flicted upon the individual, making his life miserable. Techniques such
as solitary confinement, shock treatment, and overuse of stupefying
drugs are often employed. . . .
Finally, conditions at many mental institutions are as bad as, if
not worse than, conditions in prisons.24
Aronson might logically have concluded that some treatment provided
to committed mental patients is indistinguishable from punishment,
indeed is punishment, and that therefore due process safeguards should
be provided. Instead, he reasons:
However, if sufficient treatment is being offered, such treatment could
be construed to be an acceptable "alternative purpose" of commit-
ment. The existence of adequate treatment would then be sufficient to
render the proceeding "civil" . . . . It is essential, therefore, to deter-
mine whether treatment is presently being provided at mental institu-
tions.
The analysis proposed in this Article concludes that when commit-
ment is equivalent to criminal incarceration . . . and no treatment is
given, the privilege against self-incrimination should apply. How-
ever, . . . where treatment is in fact being given following involuntary
civil or postconviction commitment, application of the privilege is not
desirable.25
Thus, Aronson does not grapple with, or even recognize, the central
question: Are constitutional safeguards appropriate when treatment is
punishment?
A. History of Therapy -as -Punishment
The idea that psychiatric treatment and punitive violence are nec-
essarily distinct in fact or in concept is not sustained by history. Treat-
ment by punitive violence is very old, going back at least to December
9, 1484, when Pope Innocent VIII issued a Bull establishing the Inquisi-
tion: "We . . . decree and enjoin that the aforesaid Inquisitors be em-
powered to proceed to the just correction, imprisonment, and punish-
ment of any persons, without let or hindrance . . . ,"26 The citation of
2iId. at 73-75 (citations omitted).
2r'Id. at 76, 93.
2fiJ. Sprenger & H. Kramer, Malleus Maleficarium xix-xx (London: Pushkin Press
1948) (orig. ed. 1486).
1974] PSYCHIATRIC VIOLENCE 611
Pope Innocent's Bull by Fr. Sprenger and Fr. Kamer in the introduction
to their famous bible of witch-hunting27 strongly suggests that "correc-
tion" and "punishment" were understood as synonyms, for the
correction-punishment the Inquisition prescribed for witches was death.
Szasz states:
The pious inquisitor would undoubtedly have been enraged at the
suggestion that he was the heretic's foe, not his friend. Likewise, the
institutional psychiatrist angrily rejects the idea that he is the involun-
tary patient's adversary, not his therapist. In denying this interpreta-
tion, the inquisitor would have countered with the assertion that his
ministrations — including burning the victim at the stake — were aimed
at saving the heretic's soul from eternal damnation; while the psychia-
trist replies that his efforts — including lifelong imprisonment, electric
convulsions, and lobotomy — are aimed at protecting and promoting the
patient's mental health.28
Incredible as it may seem, the tortures of the Inquisition were rational-
ized as solely for the benefit of the accused heretic or Jew. Lea, in his
authoritative history of the Spanish Inquisition, writes:
In theory the object of the Inquisition was the saving of souls. . . . The
penalties inflicted on the repentant were not punishment but penance,
and he was not a convict but a penitent29. . . .
Theoretically it had no power to inflict punishment .... Its sent-
ences, therefore, were not, like those of an earthly judge, the retaliation
of society on the wrong-doer, or deterrent examples to prevent the
spread of crime; they were simply imposed for the benefit of the erring
soul, to wash away its sin.30
The combination of the idea of treatment-therapy-correction with
punishment did not wane with the witch-hunts, but was transferred to
a class of people newly selected as embodiments of dangerous deviance:
the mentally ill.31 The "father" of American psychiatry, Benjamin Rush,
whose face appears on the official seal of the American Psychiatric Asso-
ciation,32 believed that almost all deviation from his own opinions con-
stituted insanity. Such deviations included political deviations such as
27Malleus Malefic arum, supra note 26.
28Szasz, supra note 1, at 51.
292 H. Lea, A History of the Inquisition of Spain 569 (1906-07), quoted in Szasz,
supra note 1, at 55.
3nH. Lea, The Inquisition of the Middle Ages: Its Organization and Operation 155
(Citadel ed. 1961), quoted in Szasz, supra note 1, at 54.
31 Szasz, supra note 1, passim.
32Id. at 138.
612 MISSISSIPPI LAW JOURNAL [vol. 45
anarchia, an "excess of the passion for liberty"33 and reuolutiona, or
opposition to the American Revolution.34 Non-political crimes such as
murder and theft were also mental diseases in Rush's view,35 and so were
sins such as lying.311 The treatments for these diseases were oddly like
criminal punishments. The only remedy for the disease of lying, Rush
wrote, is "bodily pain, inflicted by the rod, or confinement or abstinence
from food."37 "Terror" was a favorite treatment, for it "acts powerfully
upon the body, through the medium of the mind, and should be em-
ployed in the cure of madness."38
By the proper application of these mild and terrifying modes of punish-
ment, chains will seldom and the whip never, be required to govern
mad people. I except only from the use of the latter, those cases in
which a sudden and unprovoked [sic!] assault of their physicians or
keepers may render a stroke or two of the whip, or of the hand, a
necessary measure of self-defense.39
The reader will have noticed that in the preceding quotation Rush did
not disguise punishment as treatment, but frankly acknowledged that
punishment is treatment. Nor did he shrink from other heroic
punishment-therapies: "confinement by means of a strait waistcoat
. . . privation of their customary pleasant food . . . pouring cold water
under the coat sleeve . . . ."40 He also recommended blood-letting and
solitary confinement in the dark. He even used a "tranquilizer," but not
having the modern psychopharacopoeia at his disposal, his tranquilizer
was an adaptation of an inquisitorial torture chair. In Rush's adaptation
"the tranquilizer consisted of a chair into which the patient was
strapped hand and foot, together with a device for holding the head in
a fixed position."41 Deutsch comments, "[although it would be viewed
by moderns as a device of fiendish torture, it was really invented by
Rush out of humane considerations."42 The present writer regards
Deutsch's distinction between torture and humane considerations as
Hd. at 140, quoting B. Rush as cited in D. Boorstin, The Lost World of Thomas
Jefferson 182 (1948).
Hd.
35Szasz, supra note 1, at 142-53, quoting B. Rush as cited in C. Binger, Revolutionary
Doctor: Benjamin Rush, 1746-1813, 281 (1966).
3bSzasz, supra note 1, at 142-53, quoting B. Rush, Medical Inquiries and Observations
upon the Diseases of the Mind 265 (Hafner ed. 1962) (orig. ed. 1812).
37B. Rush, supra note 36, at 265-66.
'"Id. at 175.
"Id. at 183.
l0Id. at 181-92.
"Szasz, supra note 1, at 149, quoting A. Deutsch, The Mentally III in America: A
History of Their Care and Treatment from Colonial Times 79 (2d ed. 1952).
t2Id.
1974] PSYCHIATRIC VIOLENCE 613
erroneous. Rush, like the inquisitors, believed that when one was strug-
gling to free a victim from the devil, or from mental illness,43 torture, as
the most effective therapy, was therefore the only humane treatment.
Dr. Rush was also a father of American penology. His prescription
of solitary confinement for the punishment-therapy of crime-mental
disease was put into practice in one of America's first prisons, the Wal-
nut Street Jail, and later in the Eastern State Penitentiary, Philadel-
phia, in 1789. 44 Rush's treatment philosophy dominated the rapidly ex-
panding American prison system for the next 100 years. Lay observers,
unable to appreciate the scientific basis of solitary confinement therapy,
sometimes had harsh words for it. Thus, Charles Dickens, reporting on
his trip through the former colonies in 1842, wrote:
I believe it, in its effects, to be cruel and wrong. In its intention, I am
well convinced that it is kind, humane, and meant for reformation; but
I am persuaded that those who devised this system of prison discipline
... do not know what it is they are doing. I believe that very few men
are capable of estimating the immense amount of torture and agony
which this terrible punishment . . . inflicts upon the sufferers .... I
hold this slow and daily tampering with the mysteries of the brain, to
be immeasurably worse than any torture of the body.45
It should be noted that the father of American psychiatry did not shrink
from prescribing therapeutic punishment for a member of his family.
For his first-born son, John, also a physician, who manifested "grief and
uncombed hair and long beard"4fi after killing a close friend in a duel,
Rush prescribed solitary confinement therapy. John was locked in a cell
in his father's Pennsylvania Hospital continuously, except for one leave
of 6 days, for 27 years until he died.47
B. Punishment -as -Therapy Today
"Treat the criminal as a patient and the crime as a disease,"48 said
"Mental illness, broadly conceived, included political and moral deviation. See text
accompanying notes 33 through 36 supra.
UW. Nagel, The New Red Barn: A Critical Look at the Modern American Prison
(1973).
"Id.
4fiB. Rush, The Autobiography of Benjamin Rush: His "Travels Through Life"
Together with His "Commonplace Book" for 1789-1813, 288 (1948), quoted in Szasz,
supra note 1, at 152.
47Szasz, supra note 1, at 152.
4KAmerican Correctional Association, Congress of Corrections Proceedings
(1874), quoted in J. Mitford, Kind and Usual Punishment 96 (1973). For a contemporary
version of the same sentiment, see K. Menninger, The Crime of Punishment (1968). For
a review demolishing this position and Menninger's book, see Murphy, Criminal Punish-
ment and Psychiatric Fallacies, 4 L. & Soc'y Rev. Ill (1969).
614 MISSISSIPPI LAW JOURNAL [vol. 45
a prison warden at the 1874 Congress of the American Correctional
Association. The warden's advice has often been heeded in subsequent
years, but only in the last 20 years has punishment-as-treatment
emerged from the shadowy fringes of the medical arts into the spotlight
of scientific research. Solomon, a leading researcher on punishment of
rats, noted in his presidential address to the Eastern Psychological Asso-
ciation in 1963 that scientific study of punishment had languished in the
years 1930-55. "[P]erhaps a bit of softheartedness is partly responsible
for limiting our inventiveness. (The Inquisitors, the Barbarians, and the
Puritans could have given us some good hints! They did not have elec-
tric shock, but they had a variety of interesting ideas, which, regretta-
bly, they often put to practice.) We clearly need to study new kinds of
punishment in the laboratory. . . . Happily, there is now growing at-
tention being paid to the effects of punishment on behavior . . . ,"49
The ethics of behavior therapy, the category in which most scien-
tific studies of therapy-as-punishment fall, have received some, but not
much, attention from researchers and practitioners.50 A typical text-
book51 allots less than 3 of 423 text pages to ethics, but does not, in this
connection, mention punishment at all. Punishment is mentioned in a
separate section of two pages,52 but only in its technical aspects. Proce-
dures which a leading prison psychiatrist has termed "torture"53 are
discussed — seven pages for aversion therapy with alcoholics alone54
— but here neither punishment nor ethics is mentioned.
Punishment and its ethics in treatment have, however, occasionally
been discussed in clinical circles. Lucero, Vail, and Scherber state:
Many programs have employed such devices as electric shock grids,
physical restraints (tying the patient to a bed or chair), prolonged
seclusion, deprivation (usually of food and sleeping facilities), and.
finally, outright punishment. In one instance, masses of patients were
simply told, "If you don't work, you don't eat." . . . We in Minnesota
have long thought that the status of the mental patient involves suffi-
cient deprivation in itself and that any further, intentional measures
could well reduce him to a subhuman level.55
"Solomon, Punishment, 19 Am. Psychologist 239, 249, 252 (1964).
™See, e.g., Kanfer, Issues and Ethics in Behavior Manipulation, 16 Psychological
Rep. 187 (1965); Krasner, The Behavioral Scientist and Social Responsibility: No Place
to Hide, 21 J. Social Issues 9 (April 1965); Ulrish, Behavior Control and Public Concern,
17 Psychological Record 229 (1967).
:,IA. Yates, Behavior Therapy (1970).
Hd. at 30-31.
5iGroder, Program Development Coordinator, Federal Bureau of Prisons, Statement
Before the Subcomm. on Courts, Civil Liberties, and Administration of Justice of the
House Comm. on the Judiciary, Washington, D.C. (Feb. 27, 1974), manuscript at 8.
■Ak. Yates, supra note 51, at 310-16.
"Lucero, Vail, & Scherber, Regulating Operant -conditioning Programs, in Control
1974] PSYCHIATRIC VIOLENCE 615
Not all behavior therapists agree. In response to the statement by Lu-
cero and his colleagues, Miron56 replies that "[n]ot all programs labeled
as operant conditioning are truly operant conditioning";57 that "[t]he
alternative to such use of contingent punishment may be a life spent in
restraint";58 and that "the purpose of seclusion is not punishment."59
Most hospitalized people, Miron writes, are not incarcerated because
they are ill,60 but because someone in the outside community is "fright-
ened, annoyed, repulsed, or angered by their behavior."61 Since they
cannot be released until they change their behavior, he writes, almost
any measure including punishment is justified if it provides some hope
of success.62 Cahoonfi:J and Miron64 add the defense that the procedures
attacked by Lucero and his colleagues replace standard psychiatric
treatments that are more severe and hence more questionable: electro-
convulsive therapy and psychosurgery. Ball65 adds that operant condi-
tioning programs are, in his opinion, more effective than other treat-
ments; and Bragg and Wagner66 go so far as to state that: "[hjospital
programs owe it to patients to have both rewards and punishments
systematically integrated in the treatment programs . . . ." However,
Lucero and Vail were not mollified: "[N]o one," they retort, "is going
to be walking around on his own cognizance in any Minnesota state
hospital bearing an electric cattle prod or whip or any similar engine or
device. And if that is 'stultifying,' likewise so be it."67
A rare, perhaps unique, discussion of punishment-as-therapy has
been published by an academic psychologist, Singer, in a legal journal.68
At one point Singer states clearly that some therapies are also punish-
of Human Behavior: From Cure to Prevention 347 (Ulrich, Stachnik, & Mabry eds. 1970)
[hereinafter cited as Control].
'''Miron, Issues and Implications of Operant Conditioning: The Primary Ethical Con-
sideration, in Control 348.
'-'Id.
MId. at 349.
™Id. at 350.
"Id.
62Jd.
fi:!Cahoon, Issues and Implications of Operant Conditioning: Balancing Procedures
Against Outcomes, in Control 351.
fi4Miron, A Final Rejoinder, in Control 357.
fi5Ball, Issues and Implications of Operant Conditioning: The Re-establishment of
Social Behavior, in Control 353.
fifiBragg & Wagner, Issues and Implications of Operant Conditioning: Can Deprivation
Be Justified? , in Control 353.
B7Lucero & Vail, Authors' Response: Public Policy and Public Responsibility, in
Control 356.
68Singer, Psychological Studies of Punishment, 58 Calif. L. Rev. 405 (1970).
616 MISSISSIPPI LAW JOURNAL [vol. 45
ments: "Aversion therapy is another potentially useful form of punish-
ment."89 To the central question of the current article — should
punishment-as-therapy be regulated as treatment or as punishment?
— Singer gives little attention, for he believes in the neutrality of Sci-
ence:
Science provides knowledge which society can use for good or ill.
A scientist is no more qualified than any other man to place a value
judgment on particular applications of his knowledge. He can inform
society about the most expedient means to given ends; but he is not
particularly qualified to judge whether these expedient means are
ethical. . . . This Article considers how punishment can be used
effectively to suppress criminal behavior . . . .70
However, later Singer proposes that "[t]he essential decisions on what
[punishmentl is ethical and what is viable ..." be divided between
"professionals in the criminological disciplines" and "the public."71
"[B]oth the professionals and the public must decide the ethical issues
involved,"72 he concludes. Singer does not elaborate, so it is unclear
whether he would welcome legal regulation of punishment-as-therapy as
an expression of the "public" will, or whether he would reject it as
uninformed interference with "professionals in the criminological disci-
plines."73
Singer's primary concern is with the effectiveness of punishment as
a therapy, and on this subject he is, in the opinion of this psychologist,
self-contradictory. Punishment is effective, he says, and notes that al-
though Skinner74 and Estes75 "concluded that punishment is ineffective
. . . and Skinner suggested that it be eliminated as a social instru-
ment. . . . This is unfortunate, because it is wrong.76 . . . The brutal
fact, then, is that the more severe the punishment, the more effective it
is in suppressing behavior."77 At the risk of abandoning the ethical neu-
trality of science, Singer shifts to the imperative: "Make repeated pun-
ishments not only progressively more severe, but progressively much
more severe."78 In places he seems to have unlimited faith in the power
of punishment-therapy:
"Id. at 430.
70Id. at 410.
'"Id. at 413.
nId. at 442.
r-Id.
'"See generally B. Skinner, The Behavior of Organisms (1938).
7"Estes, An Experimental Study of Punishment, 57 Psychological Monographs No.
263 (1944).
7,;Singer, supra note 68, at 414.
"Id. at 414.
Hd. at 423.
1974] PSYCHIATRIC VIOLENCE 617
Given the time and the resources, a behavior therapy program could
make a bank robber want to vomit every time he saw a bank.79 . . .
[S]uccess with clinical aversion therapy indicates that its extension
to the treatment of many criminal offenses would be appropriate. . . .
Punishment is clearly an effective means of eliminating behavior;
under ideal conditions manipulating severity can provide any desired
degree of suppression. We must determine what concrete manipula-
tions of severity are effective for criminal treatments [sic] of humans.80
Punishment is most effective, Singer says, when the subject is com-
pletely helpless:
[W]e know that allowing an organism a measure of control over its
punishment will decrease the effectiveness of that punishment. . . .
[F]or maximum punishment effectiveness we should not permit pa-
role or -'time off for good behavior." . . . [P]arole will probably de-
crease the effectiveness of incarcerative punishments.81
But contradictions abound. Six pages later he points out:
The infliction of punishment on an organism in a situation where [it
is helpless to escape! . . . causes the organism to become aggressive,
compulsive, phobid, retarded, or neurotic. . . . This by itself suggests
that we should not punish people's behavior without providing them
with some alternative behavior through which they can escape punish-
ment. ... a mass of independent evidence suggests that this is not
only desirable and necessary, it is more effective as well.82
Furthermore, because the prison is wholly unlike the "normal com-
munity environment, ... on this basis alone we would predict that
prison would be almost totally ineffective . . . ,"83 In fact: "[o]ne can
also question whether it is ethical to continue to inflict punitive treat-
ments when we have no knowledge that they help anyone and when we
in fact suspect that in their present form they actually harm the offender
and society."84
™Id. at 433.
™Id. at 442.
"Id. at 422.
*2Id. at 428.
KiId. at 435.
MId. When an author has come down so squarely on both sides of the issue, it may
seem superfluous to comment further. However it should be pointed out that the contra-
dictions in Singer's conclusions are inherent in his sources of data, primarily experiments
on caged laboratory rats. This writer's appraisal of the data on which Singer relies is that
punishment effectively controls the behavior of some caged rats some of the time, but by
no means shapes the behavior of all caged rats all of the time. Also, extrapolation from
caged rats to caged men and women is extremely dubious and easily leads to contradictory
618 MISSISSIPPI LAW JOURNAL [vol. 45
Two additional major reviews of the legal aspects of punishment-
therapies have been published recently.85 Both are responsive to the
accelerating increase in the employment of punishment-as-therapy, es-
pecially in prisons.
The philosophy of punishment-as-therapy is not limited to drugs,
electric shocks, confinement in isolation cells and other punishments
carried out in prisons. The punishment-as-therapy concept is frequently
applied to the fact of incarceration itself. Malmquist puts it thus:
Nor can the issue of pain-infliction as a "reformative device" be ig-
nored. This is based on the assumption that punishment reforms. Pain
infliction then becomes the selected therapeutic technique. This may
vary from naive disciplinary methods to more sophisticated techniques
of operant conditioning to "reshape" the juvenile. In general terms, the
process of juvenile adjudication, as well as coercively maintaining resi-
dence in a delinquency institution, is a de facto punitive measure. It is
meant to be on the theory that transgressions should not be rewarded.
It is precisely in this area that confusion reigns, since the path is then
open to utilizing punitive measures as treatment. Attempts to distin-
guish penal from treatment approaches then break down.86
inferences. According to a distinguished scholar of animal behavior: "[ljittle can be
gained by extrapolation from one species to the next . . . [therefore] evolutionary and
comparative studies of behavior are of limited value if one wishes to gain an understanding
of the origins, functions, or mechanisms of behavior." Klopfer, Does Behavior Evolve?.
223 Annals of the N.Y. Academy of Sciences 113, 116-17 (1973). Similarly, Krushinskii
makes an observation inconsistent with the entire thrust of Singer's generalization from
caged laboratory rats to man: "[IJn the process of the evolution of higher nervous activ-
ity, reasoning ability has been more fundamentally changed than any other behavior. Its
great and perhaps even leading role in the evolution of hominid behavior can hardly be
questioned." Krushinskii, Problems of Comparative Psychology, 223 Annals of the N.Y.
Academy of Sciences 77-81 (1973). This writer finds it hard to credit Singer's scientific
neutrality when he strains to infer from rat data that punishment-therapy is effective,
while he virtually ignores whole libraries-full of reports on the failure of incarceration and
other punishments and punishment-therapies to rehabilitate offenders. Cf. Korn, Of
Crime, Criminal Justice and Corrections, 6 U. San Francisco L. Rev. 27 (1971); Salem &
Bowers, Severity of Formal Sanctions as a Deterrent to Deviant Behavior, 5 L. & Soc'y
Rev. 21 (1970).
"Shapiro, Legislating the Control of Behavior Control: Autonomy and the Coercive
Use of Organic Therapies, 47 S. Cal. L. Rev. 237 (1974); Wexler, Token and Taboo:
Behavior Modification, Token Economies, and the Law, 61 Calif. L. Rev. 81 (1973).
Wexler's article deals only with behavior modification, including some non-punitive
forms; Shapiro covers the gamut of coercive, organic, punitive, and violent therapies. Both
Wexler and Shapiro come close to the concept of therapy-as-punishment which is devel-
oped in this article, but neither states it explicitly. Shapiro's excellent article was pub-
lished after the bulk of research and writing for this article had been completed; otherwise
it would have been cited more frequently. See also Conditioning, supra note 1.
""Malmquist, Juvenile Detention: Right and Adequacy of Treatment Issues, 7 L. &
Soc'y Rev. 159, 180 (1972); cf. Schwitzgebel, Limitations on the Coercive Treatment of
Offenders, 8 Crim. L. Rev. 267, 282-87, 299, 305, 319 (1972).
1974] PSYCHIATRIC VIOLENCE 619
In our view "[a]ttempts to distinguish penal from treatment ap-
proaches then break down" because the distinction lacked meaning
from the beginning;*7 it was never more than a difference in semantic
perspective, like the distinction between a half-full and a half-empty
glass of water. If we belabor the point that punitive therapies are in
every sense punishments, just as they are also truly therapies, it is
because so many others have for so long failed to see the point. These
others include judges, sx legislators,89 psychiatrists,90 and prison adminis-
trators.91
"Occasionally psychiatrists make the identity of punishment and treatment explicit:
This study concerns an evaluation of the use of faradic shock as punishment
.... The uniqueness of the study lies in ... c) the fact that this procedure
was administered against the expressed will of the patient. . . .
Three factors contributed to our choice of a punishment treatment para-
digm ....
Ludwig, Marx, Hill, & Browning, supra note 1, at 625-26 (emphasis added). The "punish-
ment treatment paradigm" meant, specifically, controlling a female patient by "aversive
stimuli" (shocks) from an electric cattle prod. The authors justified their action on the
grounds that the patient was "dangerous," that other treatments had failed, and that the
electric cattle prod was a less drastic treatment than the others they considered: prefrontal
lobotomy, shackling, and solitary confinement. Id.
»*See, e.g., Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968); In re Owens, No. 70J
21520 (Cook County, 111., Cir. Ct., County Dep't, Juv. Div., July 9, 1971). In In re Owens
the court prohibited injection of Thorazine and other tranquilizing drugs for punishment
or control of juveniles, but permitted such injections "as part of a treatment for medical
or emotional illness or disorder." Shapiro, supra note 85, at 245 n.10, quoting from In re
Owens. Such a loophole will accommodate many a therapeutic-punitive Thorazine needle.
"See, e.g., McDonough v. State, 253 Md. 547, 253 A.2d 517 (1969) (holding that
Maryland's "defective delinquency" commitment statute, Md. Ann. Code art. 31B, ^j 1-
4 (1957), is civil, not criminal; i.e., therapeutic, not punitive, since the legislature so
defined it); Blann v. Director of Patuxent Institution, 235 Md. 661, 202 A.2d 722 (1964),
cert, denied, 380 U.S. 955 (1965). See also Cal. Welf. & Inst'ns Code If 7200 (Deering
Supp. 1968) (Atascadero State Hospital). For similar laws in other states and analyses of
the therapy-as-punishment institutions they have spawned, see Morris, supra note 21, at
116-17.
'MSee authorities cited notes 1, 2, 5, 7, 13, and 55 through 67 supra.
•HCf., e.g., the letter from R. Procunier, Director of the California Department of
Corrections, to R. Lawson, Executive Officer, California Council on Criminal Justice,
Sept. 8, 1971, reprinted in Rough Times 204 (Agel ed. 1973), declaring intent to seek funds
for
surgical and diagnostic procedures ... to locate centers in the brain which may
have been previously damaged and which could serve as the focus for episodes
of violent behavior. If these areas were located and it was verified that they were
indeed the source of aggressive behavior, neurosurgery would be performed
The prisoners to receive this psychosurgical treatment-punishment were to be selected
from among those held in disciplinary segregation in the Adjustment Centers. See Shap-
iro, supra note 85, at 248-49.
620 MISSISSIPPI LAW JOURNAL [vol. 45
C. Why a Difference that is Not a Difference Makes a Difference
Judges, legislators, psychiatrists, and prison administrators have
good reasons to refuse stoutly to recognize the indivisible identity of
punishment and therapy in punishment-as-therapy. Qui bono? Who
profits by it?92 The answer is: drawing a distinction between treatment
and punishment has advantages for everyone concerned except the pub-
lic and the prisoner-patient-victim. Prison administrators, supervisors,
and guards benefit, for fixing the labels "treatment" and "therapy" on
punishments permits the use of procedures up to and including torture,93
procedures which their own administrative regulations, the courts, and
the public would not permit if the justification were merely punishment.
Prison physicians, and psychologists if they are also involved, benefit,
for their budgets, their numbers, and their powers are expanded. In
addition they are enabled to believe that they are really "doing some-
thing."94 Judges benefit, for it lets them avoid facing distasteful issues
of cruel and unusual punishment carried out by their social peers and
associates in the penal system. Men are powerfully motivated to avert
their eyes from repugnant realities, especially realities for whose exist-
ence they share the responsibility.95 The public receives a near-term
benefit of the same sort as judges, but in the long run the public bears
the brunt of violence stemming from pent-up bitterness engendered by
cruel and unusual and excessive and disproportionate punishment-
treatment. The court warned of this long-run cost in its condemnation
of the Adjustment Center (theoretically a treatment facility) at the
92Szasz, supra note 1, at 143.
93See note 53 supra.
940ne should not lightly dismiss the strength of the need to "do something." Consider
one psychiatrist's recollection of his arrival at the U.S. Penitentiary at Marion, Illinois:
My initial reaction . . . was to ask those more "knowledgeable" what it was I
was expected to do. This was greeted alternitively [sic] either grimly or humor-
ously and, in general at the institution, I found little but the feeling I was at
best expected not to be a nuisance. ... I found that the so called "experts" in
the field shared with my bewildered, depressed compatriots the feeling that
psychiatry ought to have a great deal to offer corrections but that no one had
the vaguest idea how. . . . Facing the prospect of what would amount to serving
a two-year sentence myself, I decided to attempt to do my best and proceeded
to plan and implement my ideas.
M. Groder, Asklepieion— An Effective Treatment Method for Incarcerated Character
Disorders 19-20 (mimeographed, undated paper, Federal Center for Correctional Re-
search, Butner, N.C.).
95The desire not to see and not to think about evil, especially when one shares respon-
sibility, is of course not limited to judges. Opton, It Never Happened and Besides They
Deserved It, in Sanctions for Evil 49 (Sanford & Comstock eds. 1971); Kostler, The
Nightmare That is a Reality, N.Y. Times, Jan. 9, 1944, § 6 (Magazine) at 5.
1974] PSYCHIATRIC VIOLENCE 621
California Correctional Training Facility96 at Soledad. "[T]he type of
confinement depicted in the foregoing summary of the inmates' testi-
mony results in a slow-burning fire of resentment on the part of the
inmates until it finally explodes in open revolt, coupled with their vio-
lent and bizarre conduct."97 Another court remarked of the Clinton
State Prison at Dannemora, N.Y. (which is also a psychiatric treatment
facility): "[t]he subhuman conditions alleged by Wright to exist in the
"strip cell" at Dannemora could only serve to destroy completely the
spirit and undermine the sanity of the prisoner."98 Destruction of the
prisoner's "spirit" and breaking of his "will" have long been a prime
means of keeping order in prisons;99 the problem for the public is that
people whose self-esteem ("spirit") has been destroyed and whose will
has been broken cannot readily earn a living and make a place for
themselves in the outside world to which nearly all100 eventually return.
Condemned by their prison-created disability to be outsiders to society,
they become a danger to society:
I don't justify stealing, even though I am a thief myself. But now I don't
think I will be a thief when I am released. No, I'm not rehabilitated.
It's just that I no longer think of becoming wealthy by stealing. I now
only think of "killing." Killing those who have beaten me and treated
%Note that in addition to the special treatment-by-punishment rationale of the Ad-
justment Center, a euphemistic shroud of therapeutic language has been drawn around
the entire prison at Soledad; it is no longer a prison, but a "Correctional Training
Facility." New York has gone about as far as it can go in this direction, totally abolishing
both prisons and guards. Instead it now has "correctional facilities" and "correctional
officers."
"Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).
'^Quoted in Rubin, The Burger Court and the Penal System, 8 Crim. L. Bull. 31, 35
(1972).
"See, e.g., the interview with the Warden of Auburn Prison, reported in G. Beaumont
& A. DE TOCQUEVILLE, On THE PENITENTIARY SYSTEM IN THE UNITED STATES AND ITS APPLICA-
TIONS in France (1833) (reprint 1964). In the same vein the Society for Preventing Pauper-
ism in New York wrote in 1822: "[Felons'] minds should be broken on the rack and wheel,
instead of their bodies, and [felons] can only have their obstinate and guilty principles
crushed and destroyed by severe treatment . . . ." F. Gray, Prison Discipline in America
37 (1847), quoted in Schwitzgebel, supra note 86, at 269-70. For a social scientist's empiri-
cal observations tending to show that "breaking the will" is inevitable in a prison situa-
tion, see Zimbardo, The Psychological Power and Pathology of Imprisonment, in Hearings
on Corrections, Part II: Prisons, Prison Reform, and Prisoners' Rights: California Before
Subcomm. No. 3 of the House Comm. on the Judiciary, 92nd Cong., 1st Sess., at 152
(1971) [hereinafter cited as Hearings on Corrections]. For a frank exposition of the
rationale and methods for "breaking the spirit" by cruelty, see F. Douglass, Life and
Times of Frederick Douglass, Written by Himself (1962). Douglass tells how his owner,
wanting a more obedient slave, lent him on a one-year contract to Mr. Covey, a man who
specialized in "breaking" Negroes by severe bearings.
'""Ninety-eight percent, according to Korn, supra note 84, at 161-65.
622 MISSISSIPPI LAW JOURNAL [vol. 45
me as if I were a dog. I hope and pray for the sake of my own soul and
future life of freedom, that I am able to overcome the bitterness and
hatred which eats daily at my soul . . . .101
From such men as the one quoted above, and for such state-raised,
punitively-treated children as Charles Manson, Richard Speck, and Lee
Harvey Oswald, the public suffers both the danger of their presence
among us and the expense of locking them away. From the perspective
of behavioristic theory, it is unfortunate that the "negative reinforce-
ment" we receive from them does not produce an "association" in our
minds between what we have done to them and what they, enraged,
return to us.
II. PSYCHIATRISTS' ROLES IN VIOLENT PUNISHMENT- AS -
THERAPY
Courts have traditionally been most reluctant to entertain com-
plaints of prisoner mistreatment, fearing to undermine the authority of
prison officials.102 The courts have been doubly reluctant to involve
themselves in claims of medical mistreatment in prisons,103 for judges,
like the rest of us, tend to assume that a physician aims to help his
patients. But non nocere, do not harm, the Hippocratic Oath enjoins;
and the fact that it is necessary to have such an injunction should be a
caution that physicians, like the rest of us, have other motives. "Other
motives" are especially significant for psychiatrists in prisons, for an
examination of the record of psychiatric treatment in prisons will show
that prison psychiatrists are, in general, first and foremost functionaries
in the disciplinary power structure of the prison bureaucracy. Their
interests are as adverse to the welfare of the prisoners as are those of the
prison keepers. Therefore, punitive psychiatric therapies in prisons
should be subject to at least the same judicial scrutiny and standards
as are administrative punishments. While restrictions on punishment
are extremely lax,104 they allow far less latitude than is currently abused
""Letter from a prisoner subjected to 37 months in solitary confinement, quoted in
Zimbardo, supra note 99, at 153. See also T. Gaddis & J. Long, Killer: A Journal of
Murder (1970).
"l2Comment, Constitutional Limitations of Prisoners' Right to Medical Treatment, 44
Miss. L.J. 525 n.l (1973).
mId. at 525-28.
"""The Eighth Amendment to the United States Constitution forbids the infliction
of cruel and unusual punishment. Astonishing as it may seem, not a single kind of physical
punishment has ever been condemned by the Supreme Court of the United States, nor
does any kind of punishment stand condemned." Rubin, The Burger Court and the Penal
System, 8 Crim. L. Bull. 31, 33 (1972). Of course, the Court has since declared capital
punishment to be "cruel and unusual" and hence unconstitutional, at least if the jury has
discretion to impose it or not. Furman v. Georgia, 408 U.S. 238 (1972).
1974] PSYCHIATRIC VIOLENCE 623
under the theory that therapy-as-punishment is treatment and therefore
is not punishment. If psychiatrists' activities in prisons were constrained
by the same minimal requirements of due process and prohibitions
against cruel and unusual punishments as now apply to prison wardens
and prison guards, the practical effects would be substantial, especially
so with respect to indeterminate sentences.
To substantiate the above assertions, it will be necessary to exam-
ine the social roles and bureaucratic matrices in which prison psychia-
trists move as they mete out therapy-as-punishment.
A. The Psychiatrist as Proponent of Violence Against Prisoners: The
Legitimator of Therapy -by -Punishment.
Visotsky105 has summarized the findings of many investigators106
showing that in mental institutions the bureaucratic needs of the insti-
tution for passivity, obedience and submission take precedence over the
therapeutic needs of the patients for development of autonomy, initia-
tive, and self-control. Nevertheless, the therapy-as-punishment "arma-
mentarium" of psychiatry is pressed into service for the institution's
anti-therapeutic purposes: "Obedience to aides and conformity to the
culture of the hospital was rewarded; deviance was punished through
the denial of privileges and through more active sanctions such as physi-
cal punishment, physical restraint, electroshock, hydrotherapy, and
transfer to less desirable areas of the hospital."107
The psychiatrist as proponent of violence against inmates, patients
or prisoners, for the purpose of furthering institutional goals will be
found in many hospitals and prisons.108 An especially clear example is
offered by Cotter, a California psychiatrist who described the innova-
tions he introduced during 2 months of volunteer work in South Vietnam
in 1966. In the section of his paper titled "Operant Conditioning Applied
to Chronic Patients," he reports his efforts to bring the moral benefits
of the Puritan work ethic to the "backwards" of a Southeast Asian
hospital. Telling the patients that they would have to work if they
expected to be discharged, he was met by a majority response of
" 'Work! Do you think we're crazy?' "109 Dr. Cotter responded by an-
nouncing:
'""'Visotsky, Adequacy of Treatment and Provisions for Methods of Assuring Adequacy
of Treatment, in The Mentally III and the Right to Treatment 63 (Morris ed. 1970).
",fiH. Dunham & S. Weinberg, The Culture of the State Mental Hospital (1960);
E. Goffman, Asylums (1961); A. Stanton & M. Schwartz, The Mental Hospital (1954);
Lehrman, Do Our Hospitals Help Make Acute Schizophrenia Chronic?, 22 Diseases of the
Nervous System 489 (1961).
",7Visotsky, supra note 105, at 66.
108Szasz, supra note 1, at
'""Cotter, Operant Conditioning in a Vietnamese Mental Hospital, in Control, supra
note 55, at 100-01.
624 MISSISSIPPI LAW JOURNAL [vol.45
People who are too sick to work need treatment. Treatment starts
tomorrow — electroconvulsive treatment. . . .
The next day we gave 120 unmodified[110] electroconvulsive treat-
ments . . . .'"
Therapy-as-punishment in the form of electroconvulsive shock evi-
dently did not work as well as Cotter had hoped, for soon he and two
other psychiatrists were "kept quite busy administering the several
thousands [sic!] of shock treatments required . . . ."112 He therefore
announced, "After this, if you don't work, you don't eat."113 The threat
of total starvation (the patients were already malnourished) drove most
patients to the fields. Having "cured" the patients, Cotter looked for
community placements, and, learning that the local prison officer would
not permit prisoners of war to be used for forced labor in U.S. Special
Forces camps in the mountains, Dr. Cotter volunteered the services of
"his" mental patients. This he considered therapy, although there are
those who would contend that sending schizophrenics to work as corvee
laborers for American soldiers in the most isolated and vulnerable out-
posts in Vietnam could have an inimical effect on their health.
The significance of the Cotter article is not that one psychiatrist so
ingenuously reported on his use of violence — electric shock and starva-
tion— to force mental patients to work. That is revealing only about the
individual. The significance lies, rather, in what is revealed about pro-
fessional standards by the fact that the psychiatrist's work resulted not
in censure or sanctions, but in publication of his article in the official
journal of his professional association114 and reprinting in a textbook115
whose purpose is to illustrate "progress"118 in behavior control and
to "begin suggesting new tactics for the prevention of behavior
problems."117 Such violent tactics are not new at all, of course; only the
obfuscating use of the technical vocabulary of operant conditioning and
behavior modification is novel. Torture as a weapon of control and pun-
ishment has a long history. Its persistence testifies to its effectiveness.
Because it is so very useful, prison officials are loath to renounce it.118
""By "unmodified" Dr. Cotter means that he administered the electric shock to fully
conscious men and women. It is customary to give a general anesthetic prior to electrocon-
vulsive shock therapy in order to alleviate the terror of the experience.
111 Cotter, supra note 109, at 101.
U2Id. at 103.
mId. at 102.
1 "Cotter, Operant Conditioning in a Vietnamese Mental Hospital, 124 Am. J.
Psychiatry 23 (1967).
""Control, supra note 55, at 100.
mId. at Preface [unnumbered page].
nlId. at Introduction [unnumbered page].
"HAt the 101st Congress of the American Correctional Association, 1971, Tom Murton.
1974] PSYCHIATRIC VIOLENCE 625
Small wonder, then, that as courts begin to implement the constitu-
tional prohibition against torture,119 the practice should reappear under
other names, and officials begin seeking other sanctioning agents to
legitimate a valued weapon.
A prime example of psychiatric violence against prisoners as a
means of legitimating cruel and unusual punishment is "aversion ther-
apy" as imposed on inmates. The medical technique has been described
in detail elsewhere,120 so a layman's description may be more appropri-
ate here:
[Harvey has just refused his nightly Thorazine "cocktail."!
"That's it, Harvey," Harrison says. "Remember what I told you
formerly head of the Arkansas prison system, introduced a resolution "to reject in princi-
ple the 'unwarranted use of force in controlling inmates, which often results in their
death.' " The resolution was defeated by voice vote. J. Mitford, supra note 48, at 44. See
also Clanon's defense of Anectine therapy-by-punishment, Clanon, Letter to the Editor,
1 Bull, of the Am. Acad, of Psychiatry and the L. 61, 68 (1972). See generally Greenberg
& Stender, The Prison as a Lawless Agency, 21 Buffalo L. Rev. 799 (1972); Ingraham,
Will Legal Relief for Inmates Prevent Violence in Correctional Institutions?, Prevention
of Violence in Correctional Institutions 33 (National Institute of Law Enforcement and
Criminal Justice, U.S. Dept. of Justice, 1973). Ingraham, an academic criminologist who
advocates implantation of telemetry devices in the brains of parolees so that they may be
controlled by radio via a central police computer, deplores recent lower court decisions
permitting prisoners to air their grievances with respect to punishment in the courts; he
advocates leaving the implementation of "whatever reforms and changes" legislatures
may decree to "trained administrators with expertise in the field." Id. at 46. In his opinion,
"introducing adversariness and legal game-playing into the prison regime may do more
to stimulate violence in prisons than to suppress it." Id. at 43. For a candid exposition of
the rationale for torture, and for its political equivalent, terror, one may turn to the
Germans. H. Himmler, Die Schutzstaffel als antibloschewistische Kampforganisation
[The Black Corps as an Anti-Communist Fighting Organization] (1936). The theory of
terror was not a Nazi discovery. Almost one hundred years ago General Hartman, elabo-
rating on Bismarck's Fuerstenpolitik, stated: "whenever war breaks out, terrorism be-
comes a necessary military principle," since "terrorism is a relatively gentle means of
keeping the masses in a state of permanent obedience." Hartman, Militaerische Notwen-
digkeit and Humanitaet [Humanity and Military Necessity], Deutsche Rundschau,
1877-1878, XIII-XIV, cited in German Psychological Warfare; Survey and Bibliography
(New York, Committee for National Morale, 1941, on deposit in the Maslow Library of
the Wright Institute). Prison administrators are unlikely to be as frank as Himmler and
Hartman, but for keeping "the masses" of prisoners "in a state of permanent obedience,"
there are probably no easier methods than terror and torture. This is essentially the same
argument as is made by Ball in his defense of aversion herapy (note 65 supra) and by
Cahoon in his defense of such procedures (note 63 supra). The titles of their articles alone
indicate the line of reasoning: the end justifies the means.
"9Weems v. United States, 217 U.S. 349 (1910), is often cited as the leading case on
this point; however, "this decision, applicable in a foreign land, considering a foreign law,
has never been applied by the [U.S. Supreme] Court to strike down equal and worse
abuse of prisoners in this country." Rubin, supra note 104, at 33.
l20See authorities cited note 1 supra.
626 MISSISSIPPI LAW JOURNAL [vol. 45
last time. They're just going to have to give you Anectine again."
Harvey goes limp. "No Mr. Harrison, don't give me that!"
"I'm sorry, Harv, but you don't give us much choice."
. . . Burns prepares a Thorazine injection . . . [a]nd one morn-
ing soon they will take Harvey downstairs to an examining room, and
strap him to the table. The doctors will drain Anectine from a vial while
technicians wheel an oxygen tank closer. They will tell Harvey if he had
behaved himself they wouldn't have to do this. The cotton ball will be
cold on the tied vein, the needle inserted before he has time for a full
breath or thought. Paralysis will sweep through him, pounding heart
stilled, lungs unable to draw or burst, attempts at movements aborted.
He will know he is dead as the doctor bends to softly warn, "Now,
Harvey, you won't act up anymore, will you? It just doesn't pay. You
know better than that . . . ." And before unconsciousness, before a
blurred hand reaches for the tank, he'll revive, tingling with frightened
life, no wiser from knowing the next dose will be larger.121
Livingston's description of Anectine therapy-by-punishment is more
vivid than technical descriptions, but it in no way distorts the role of
the authorities; i.e., telling the prisoner-patient that he is receiving the
therapy-punishment because he has refused to obey orders, in this in-
stance orders to take a less severe punitive therapy, the drug Thora-
zine.122 Nor does Livingston's description misrepresent the effect of
12,G. Livingston, Exile's End 101-02 (1973). The author was a patient-prisoner at
Atascadero State Hospital, California.
122A journalist recently noted:
The psychiatrist's main function is to prescribe medication that will drug
the inmate into submissiveness ....
A sure way to quiet down a man who is "acting out" is to put him on 1,100
milligrams of Thorazine a day. It turns him into a zombie. Or, in clinical terms,
it screens off the amount of input so the inmate can reorganize his psychic
structure. . . .
[M]ost of the men on the 10th floor [of the jail] are on daily doses of
Thorazine varying from 200 to 1,400 milligrams. Another common medication
is chloral hydrate, the original knockout drops Irish bartenders used to slip into
Mickey Finns. . . .
One measure of prison reform is that the psychiatrist has become the suc-
cessor of the brutal guard. Both men work toward the same goal: to produce a
model prisoner, quiet and passive, who answers when he is spoken to and does
what he is told. Where the brutal guard used rubber hoses, the psychiatrist relies
on powerful tranquilizers like Thorazine. . . .
Mistreatment of prisoners has not vanished from the Tombs; it has simply
moved to the 10th [psychiatric] floor. . . .
Morgan, Entombed, N.Y. Times, Feb. 17, 1974, § 6 (Magazine) at 14, 21-22. 24.
1974] PSYCHIATRIC VIOLENCE 627
Anectine. The drug is used, according to psychiatrists who use it,
because it produces terror, the sensation of drowning, of dying.
Other important "aversive stimuli" include electric shock to the
arms, feet, or groin123 and drugs which produce 15 minutes to 1 hour of
uncontrollable vomiting. These heroic treatment-punishments are ra-
tionalized as necessary and humane therapy in view of the seriousness
of the mental disorder and the desire to avoid even more drastic alterna-
tive treatments,124 but the realities are spelled out in Judge Ross's opin-
ion on the use of amorphine as an aversive stimulus to produce vomit-
ing:
Dr. Loeffelholz [a prison psychiatrist] testifed that the drug could be
injected for such pieces of behavior as not getting up, for giving ciga-
rettes against orders, for talking, for swearing, or for lying. Other in-
mates or members of the staff would report on these violations of proto-
col and the injection would be given by the nurse without the nurse or
any doctor having personally observed the violation and without spe-
cific authorization of the doctor.125
The United States Court of Appeals for the Eighth Circuit declared
this procedure to be cruel and unusual punishment, but only after the
trial court found no constitutional objection to this torture of prisoner-
patients for minor infractions, including infractions alleged only by fel-
low prisoners and not witnessed by staff. The trial court126 even rejected
the recommendation of its magistrate that inmate aides not be used in
carrying out the "therapy."127 The trial court's decision is indicative of
the strength of the punishment-as-therapy idea: "Since— the argument
runs — by definition the treatment is not 'punishment,' it obviously can-
not be 'cruel and unusual punishment.' "12H Except for the assistance of
the punishment-as-therapy fallacy, it is hardly conceivable that the
administration of powerful emetic drugs in the circumstances of Knecht
v. Gillmanm could have been approved by any court in a nation whose
laws prohibit torture.
m" Behavior Mod" Behind the Walls, Time, March 11, 1974, at 74 (at Connecticut
State Prison).
mSee text accompanying notes 56 through 66 supra.
l25Knecht v. Gillman, 488 F.2d 1136, 1137 (8th Cir. 1973).
l2fiU.S. District Court for the Southern District of Iowa, William C. Stuart, Judge (not
reported).
,27Knecht v. Gillman, 488 F.2d 1136, 1136-37 (8th Cir. 1973).
l2sVann v. Scott, 467 F.2d 1235, 1240 (7th Cir. 1972) (The appellate court cited this
argument in order to reject it).
I29488 F.2d 1136 (8th Cir. 1973). Aversion therapy as used outside of prisons and
hospitals is not necessarily torture. Neurotics sometimes submit to aversion therapy in
an effort to cast off their unwelcome compulsions and cravings. Since they are free citi-
zens, they retain control over the treatment, deciding if and when to begin, whether to
continue, and when to stop. Defenders of aversion therapy in prisons have often argued
628 MISSISSIPPI LAW JOURNAL [vol. 45
Advocacy of violence against prisoners in the name of punishment -
as-therapy has extended to promotion of Chinese-style thought reform
("brainwashing") for American prisoners. A prominent social psycholo-
gist, author of a definitive book130 on Chinese thought reform, suggested
to a meeting of Federal prison administrators which included Dr. James
V. Bennett, then Chief of the Bureau of Prisons, that they could apply
the Chinese methods in their institutions:
[T]his [thought reform] "model" of behavior and attitude change is
a general one which can encompass phenomena as widely separated as
brainwashing and rehabilitation in a prison or a mental hospital. I
would like to have you think of brainwashing not in terms of politics,
ethics and morals, but in terms of the deliberate changing of behavior
and attitudes by a group of men who have relatively complete control
over the environment in which the captive population lives.
If we find similar methods being used by the Communists and by
some of our own institutions of change, we have a dilemma, of course.
Should we then condemn our own methods because they resemble
brainwashing? I prefer to think that the Communists have drawn on
the same reservoir of human wisdom and knowledge as we have, but
have applied this wisdom to achieve goals which we cannot condone.
These same techniques in the service of different goals, however, may
be quite acceptable to us.131
The first of these Asian methods which "may be quite acceptable to us"
which the psychologist identifies as central to the thought reform of
Chinese civilian prisoners is: "In trying to get him to confess, they would
beat, kick, shout at, spit on, humiliate, revile and otherwise abuse the
prisoner twenty-four hours a day for weeks and months on end."132 The
"they" here is the prisoner's cellmates, for the key to a favorable benefit-
cost ratio in the Asian scheme is conservation of paid manpower by
using the prisoner's cellmates as what the American psychologist terms
the "agent of change." The necessary abusive behavior was exacted
from the cellmates under the threat that any lack of enthusiasm on their
part would show that they themselves were backsliding or insincere, and
so in need of taking the receiving end of the physical and verbal violence.
Moreover, the prisoners could not easily "con" one another:
that, since the therapy is available to the general public, incarcerated persons should not
be denied access to it. To this writer such arguments have as much force as the idea that,
since some people choose to dose themselves with whiskey in order to dissolve their
anxieties, it would be an inhumane denial of treatment not to force a bottle of whiskey
down the throat of prisoners whose behavior has been diagnosed as "anxious."
I3"E. Schein, Coercive Persuasion (1961).
'■""Schein, Man Against Man: Brainwashing, 8 Corrective Psychiatry & J. Social
Therapy 90 (1962).
vnM.
1974] PSYCHIATRIC VIOLENCE 629
False confessions or insincere attempts to comply with cellmate pres-
sures were met with renewed hostility. Nothing less than real recogni-
tion of crimes was demanded. Periodic interrogation, general physical
debilitation, sleeplessness and a very exacting prison regimen all added
to the stresses . . . .I33
The psychologist preceded his description of Chinese thought re-
form with his opinion that the means were legitimate; it was only the
Communist ends of the Chinese that were unacceptable. The address
to the prison administrators ends on the same note:
And do we not put criminals with the wrong attitude in the midst of
others with the right attitude in the hope that they will learn the right
ones through the pressure of the group. Let me remind you, I am not
drawing these parallels in order to condemn some of our own ap-
proaches, rather my aim is just the opposite. I am trying to show that
Chinese methods are not so mysterious, not so different and not so
awful, once we separate the awfulness of the Communist ideology and
look simply at the methods of influence used.134
Asked during the discussion period whether his advice would apply to
political prisoners such as conscientious objectors, the psychologist said
that if they were troublemakers such methods would indeed be help-
ful.135
mId.
™Id.
mId. Dr. Schein, in a letter to Harper's Magazine, Nov. 1973, at 128, maintains that
"[n]othing could be further from the truth" than the interpretation here placed on his
remarks to the executive development seminar of the Bureau of Prisons in 1962. He writes:
I had been asked to describe how the Chinese Communists managed their prison
camps ....
The notion that social scientists were in any way teaching prison wardens
these new techniques is naive in the extreme. The fact is that any organization,
when threatened by a small minority, will tend to defend itself, and prisons will
do so, like any other organization. Wardens have learned from their own experi-
ence how to do this with very little help from professors. Professors have helped
to describe and highlight these techniques ....
Were I to give this talk again today, I would not simply describe what
happened in Korea and how it does or does not resemble what we might do in
our own prisons. I would find it necessary to evaluate these techniques and take
a clear stand against their use as a technique of prison management.
Although the present writer is relieved to learn that a distinguished psychologist wishes
to take a clear stand against use of Chinese-style thought reform methods in American
prisons in 1973, he is unable to find any evidence that Dr. Schein took a merely neutral
stand in 1962 ("I had been asked to describe . . . ."). The passages quoted in the text
above this note are representative of the 1962 paper, and the writer has been unable to
630 MISSISSIPPI LAW JOURNAL [vol. 45
It is a matter of controversy whether, and to what extent, Chinese
thought reform methods are now being applied in American prisons.
The Federal Prisoner's Coalition, in a petition to the United Nations
Economic and Social Council, July 1972, 13fi asserts that the Asklepieion
program in the Marion, Illinois, Federal Penitentiary is indeed modeled
on Chinese methods, and their point-by-point comparison between Dr.
Schein's paper137 and the Asklepieion program is plausible. Whether
that plausible interpretation is correct or not remains to be seen. Cer-
tainly the Asklepieion program uses some elements of Chinese thought
reform, but this does not necessarily condemn it as psychiatric violence.
Schein is correct when he points out that Chinese thought reform has a
great deal in common with traditional practices in Western institutions
as diverse as hospitals, religious orders, schools, and prisons.138 What the
Federal Prisoners' Coalition claims is that Asklepieion goes beyond the
usual commonalities to employ the violent, identity-destroying, and
highly punitive aspects which Chinese thought reform does not share
with standard Western practices. Of that allegation this writer, having
seen little documentary evidence, remains skeptical. It may be signifi-
cant, however, that in his statement defending the Asklepieion program
before a Congressional Committee139 the founder of the program made
no attempt to refute the Prisoners' Coalition charges; instead he denied
that he would use "methods of modern-day torture known as aversive
conditioning, specifically the misuse of drugs, electric shock or psycho-
surgery."140 None of these methods is used in Chinese-style thought
locate any passages consistent with Dr. Schein's current belief. Moreover, Dr. Schein is
too modest when he writes, "[t]he notion that social scientists were in any way teaching
prison wardens these new techniques is naive .... Wardens have learned from their own
experience how to do this with very little help from professors." American prison wardens
have never systematically employed cellmates as agents for deliberate, continuous, pro-
longed physical and verbal abuse to break down other prisoners' personal identity, their
concept of self, their "spirit." Nor have American prison wardens systematically at-
tempted to force prisoners to demand confessions from one another, to attack those confes-
sions as false and insincere, to demand of one another more self-critical, more self-
destructive "true" confessions, and so forth. Because these key aspects of the Chinese
methods did not exist in American prisons, the results of Chinese thought reform as-
tounded and frightened Americans in the 1950's. In 1962 Dr. Schein was indeed teaching
prison wardens something they had not already learned from their own experience. That
such was the case is further indicated by the fact that, at the conclusion of Dr. Schein's
1962 seminar, Dr. Bennett urged the assembled prison executives to go forth and experi-
ment with the methods Dr. Schein had suggested, an admonition that would have made
no sense if Dr. Schein had merely described for them what they were already doing.
I36J. Mitford, supra note 48, at 123.
i:i?Schein, supra note 131.
mE. Schein, supra note 130, at 119-20.
i:i9Groder, supra note 53.
mId. at 8-9.
1974] PSYCHIATRIC VIOLENCE 631
reform, and none was alleged in the prisoners' petition to the United
Nations Economic and Social Council.
The nature of the Asklepieion program is of considerable practical
significance. Dr. Groder, founder of Asklepieion and now Program De-
velopment Coordinator, Federal Bureau of Prisons, intends to employ
it as one of the primary programs at the new Federal Center for Correc-
tional Research, Butner, North Carolina. He also intends the program
to export its "graduates" to found similar programs throughout the
federal and state prison systems.141 That process has already begun.
While the nature of the original Asklepieion program remains at
issue, it appears that violent therapy-as-punishment could take place
within its theoretical framework. Dr. Groder's written description of
Asklepieion142 makes it clear that the very ambitious aims of Chinese
thought reform — to "unfreeze" the prisoner's former organization of be-
liefs about himself (i.e., to degrade his self-concept, to shatter his per-
sonal identity), to "change" his personality, and to "refreeze" the new
beliefs into his new personality143 — are included in the Asklepieion pro-
gram. To achieve such ambitious ends the Chinese required drastic and
violent means; it is highly unlikely that Americans will succeed with
less. Central features of Asklepieion, "transactional analysis," "Syna-
non games," "primal therapy," and "attack therapy" [sic] easily lend
themselves to distortion into Chinese-style, violent verbal assaults by
the group on the individual, and if restraints are loosened, to violent
physical assaults as well. Given the exigencies of power relationships in
American prisons, it is all but inevitable that the restraints will be
loosened, the humane intentions of the founding psychiatrist notwith-
standing. Indeed, this has already occurred in at least one program
which is derivative of Asklepieion. A program was initiated in the sum-
mer of 1973 at the California Institution for Women which combined the
rhetoric of both Asklepieion and behavior modification. Working within
a framework of "therapeutic" language, the prison officials designed a
program of extraordinary deprivation and severity. In keeping with the
therapy-as-punishment orientation, no attention was given to constitu-
tional issues. Shortly after the program began, in the course of an all-
night "marathon" session of "attack therapy" for the purpose of pres-
suring a politically radical prisoner to submit to the program, the non-
conforming prisoner was held on the floor by a guard while another
prisoner beat her, fracturing several facial bones.144 The progression just
UiId. at 8; Groder, supra note 94, at 25, 39.
142Groder, supra note 94.
mId. at 5-15, 25-31.
'^Information on events at the California Institution for Women was obtained: (1)
from letters from prisoners, (2) from Fay Stender, former Director of the Prison Law
632 MISSISSIPPI LAW JOURNAL [vol. 45
described, from drastic but humanely-intended conceptualization to a
brutal realization, is a progression that has been seen before in efforts
toward therapeutic prisons. It will surely be seen again.
B. The Psychiatrist as Compliant Accomplice, Naive Dupe, and Pres-
sured Subordinate in Violence Against Prisoners: Therapy-by-
Punishment as a Facade
Psychiatrists are not the proponents of all the violent assaults on
prisoners undertaken using their psychiatric tools or psychiatric lan-
guage. Often prison psychiatrists complacently issue the necessary or-
ders, allowing higher administrators to use their authority in the service
of punitive purposes. When they participate in such facades, they take
the role of compliant accomplices. At other times psychiatrists in pris-
ons fail to see the plainly visible punitive use to which they are being
put; they are then naive dupes. Others go along with punitive misuse
of their authority reluctantly, but cannot bring themselves to complain,
resign, or be fired; they take the common bureaucratic role of pressured
subordinates. Since these roles meld into one another, and since individ-
uals often move from one role to another, the three roles will be illus-
trated together.
1. The Hole as Therapy: From Adjustment Center to START
As long as there have been prisons there have been "holes." Guards
hold only an insecure authority over masses of prisoners unless they can
threaten drastic punishment for insubordination. The hole is such a
weapon. Not only does the threat of the hole intimidate men into docil-
ity, it is also a convenient place in which to wall off and to break the
will of any who are not intimidated, especially any who show signs of
political, organizational, or leadership ability.145 Such men, who might
gather a group of their peers together in common purpose, are perceived
Project, after her visit to the prison in late 1973, (3) from internal prison documents
describing the ITU program, and (4) from correspondence between the prison Superin-
tendent and the attorney for the injured prisoner.
,45"[Prison] spokesmen strenuously deny that they use lock-up in the Adjustment
Center as punishment for political dissidents .... But ... as reported in the confiden-
tial minutes of the wardens and superintendents meeting, October 11-12, 1972, under the
topic 'Inmate Alliances,' Director Raymond Procunier 'asked the problem be kept in
perspective, comparing it to the Muslim situation ten years ago. The director suggested
the leaders of the various groups be . . . locked up.' " J. Mitford, supra note 48, at 133.
See also Hollander, The "Adjustment Center": California's Prisons Within Prisons, in
Hearings on Corrections, supra note 99, at 285. The hole and other forms of graded
punishment housing within the institution are not limited to the United States nor to
prisons; they are generally features of total institutions. For examples from American
mental hospitals, see E. Goffman, Asylums (1961); for examples from prisons in the
U.S.S.R., see A. Marchenko, My Testimony (1969).
1974] PSYCHIATRIC VIOLENCE 633
as the greatest threat of all by those who operate the totalitarian form
of internal government which is prescribed for prisons.146 Thus it was
natural that when physicians and social scientists came into prison
administration they re-invented the hole. One such social scientist de-
scribes how he attempted "to wrest control of the prison . . . from a
coalition of prisoners:"147
[We built] ... a more secure "prison within the prison" for "persist-
ently recalcitrant or dangerous inmates." I spent considerable time in
this prototype of the modern "adjustment center . . . ."
The result of this thought was the production of a Manual for the
Treatment of Adaptive Offenders . . .for overcoming the resistance of
recalcitrant inmates to treatment. The effort proceeds through several
stages . . . :
Stage I: The Struggle for Control ("Can I Dominate You?")
Stage II: Overt Rebellion ("Can You Stop Me?")
Stage III: Heroic Suffering ("You Can't Break Me!")
Stage IV: Despair ("Does Anybody Give a Damn?")
Stage V: Emergence of Self-Doubt ("This Is Getting Me No-
where.")
Stage VI: Testing ("Can I Make It?")
Stage VII: Fixating the Therapeutic Results and Terminating
Institutional Treatment.
... I had tacitly accepted a technique for breaking the resistance of
my clients ... I was collaborating in a process of torture which used
isolation and frustration as its weapons . . . .I48
Here one sees the language of psychiatry — "adaptive," "treatment,"
"self-doubt," "testing," "therapeutic results" — used to legitimize a pro-
cess which in plain English is called "throwing them in the hole until
they break."
Throwing men in the hole was not the intention of the treatment-
minded men who invented therapeutic segregation. In California such
l4fiM. Camacho, President of the California Correctional Officers Association has
stated:
[T]he California Correctional Officers Association cites the revolutionary
movement, the existing conspiracy to destroy our system, as the prime cause of
increased prison violence and murder. To reverse this trend, we recommend
housing revolutionary inmates in a separate maximum security facility. We do
not see this as the ultimate solution .... [0]ur recommendation that revolu-
tionary inmates be housed apart from the conforming inmates is based on arriv-
ing at the fastest, not necessarily the ultimate, solution. . . .
Hearings on Corrections, supra note 99, at 58, 142. Camacho probably did not intend to
invoke connotations of the Third Reich by use of the phrase "ultimate solution."
l47Korn, supra note 84, at 31.
mId. at 32. Note that the aim is not just law-abiding behavior, but to break the will.
Cf. note 99 supra and text accompanying note 170 infra.
634 MISSISSIPPI LAW JOURNAL [vol. 45
cellblocks are called Adjustment Centers; and three high prison officials
described their intention thus:
The term Adjustment Center . . . described a facility with positive
and constructive treatment objectives, a place which is quite the oppos-
ite of what in ordinary prison usage is designated usually by some
negative and forbidding titles such as "The Hole". . . . The experi-
ences in the Adjustment Center are planned for treatment rather than
punishment.149
Of course no "positive and constructive" treatments ever occurred in
Adjustment Centers.150 So foul are conditions in Adjustment Center cells
and so intense the harassment and brutality151 that shocked judges have
from time to time condemned the Adjustment Center as cruel and unu-
sual punishment.152 The cruelty was inevitable, for: "[t]he worse the
Adjustment Center . . . the more effective it is as a weapon, bludgeon-
ing the convicts into passivity, docility, and submissiveness."153
When the idea of positive and constructive treatment was cor-
rupted, most of the specialists in psychiatric treatment who had con-
ceived and promoted the Adjustment Centers participated in the psy-
chiatric legitimation of consigning prisoners there. As one psychiatrist
who worked briefly at San Quentin has noted: "[0]nly those psychia-
l49Cook, Fenton, & Heinze, paper given at the Congress of the American Correctional
Association, 1955, quoted in J. Mitford, supra note 48, at 106.
l5n"The Department of Corrections not only stumbled in achieving their [thera-
peutic] objective, but fell flat on their face .... As stated by Dr. David A. Ward,
'Segregation and isolation units (the "hole") were merely relabeled "adjustment centers"
....'" Assembly Select Committee on Prison Reform and Rehabilitation, Administra-
tive Segregation in California's Prisons; Alias: The Hole, Lockup, Solitary Confine-
ment and the Adjustment Center 2-3 (1973) (citations omitted) [hereinafter cited as
Segregation]. The complete lack of any program which could be called therapeutic, even
by the farthest stretch of the imagination, did not stop administrators from continuing to
invoke psychiatric sanction. A recent document states that the Adjustment Centers pro-
vide:
a) A positive, treatment-oriented atmosphere wherein the individual inmate
can come to grips with his personality problem.
b) An optimum amount of individual and group counseling, individual and
group psychotherapy ....
c) specialized psychiatric, psychological and social work services.
California Department of Corrections, Director's Rules ch. V, CL/83 (Feb. 5, 1970).
The prison administration does not consider these fantasies to be mere boilerplate, for as
recently as 1972, in a letter to a legislator, the Director of the Department stated that lock-
up in the Adjustment Centers is not intended as a punitive measure. Letter from R.K.
Procunier to W. Karabian, Sept. 14, 1972, described in Segregation, supra, at 4.
mSee Hearings on Corrections, supra note 99, at 249-88.
mE.g., Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).
'"'■'Hollander, supra note 145, at 286.
1974] PSYCHIATRIC VIOLENCE 635
trists who become co-opted by the prison and adopt Custody's punitive
attitude to the prisoner are likely to remain on the job: 'Those who do
not fit in will be eliminated and those who do fit in will stay on.' ",54 This
describes the compliant accomplice role. Others may have been naive
dupes, averting their eyes, ears, and noses from the evidence that would
have refuted the official myth of therapeutic justification for the Adjust-
ment Centers. No doubt many psychiatrists were pressured
subordinates, realizing that administrators and guards were perpetrat-
ing the monstrous cruelties in the name of therapy, but doing nothing
to resist.
The Escalation of Punishment. The failure of California's Adjust-
ment Centers and of their equivalents elsewhere is widely recognized.
Not only have they failed to provide treatment, but more important,
they have failed to break the spirit of prison militants.155 Korn explains
why:
The Escalation Process: In Order to Remain Effective, Punishments
Must Continually Become More Severe
[T]he essential rationale of a punitive system [is]: deterrence
through the fear of worse rather than the hope of better.
But the theory fails to take into account man's capacity to adapt.
It is the adaptation process which ultimately defeats any punish-
ment short of extreme physical torture and, of course, death. Because
the increased dosages of suffering also increase the victim's tolerance,
the level must be continually raised.156
In the current process of escalating punishment psychiatry is once
again centrally involved. In California the escalation is termed the Max-
imum Psychiatric Diagnostic Unit.157 A similar program in New York,
aborted after public protests, was titled the "Prescription Program." Its
espousal of a therapeutic operant conditioning rationale did not impress
the New York Select Committee on Correctional Institutions and Pro-
grams:
154Powelson & Bendix, Psychiatry in Prison, 14 Psychiatry 73 (1951), cited in J.
Mitford, supra note 48, at 101.
I555ee note 99 supra.
,5fiKorn, supra note 84, at 58-59.
'"This writer attended a planning meeting for the Maximum Psychiatric Diagnostic
Unit in 1971, just before it opened. Prison psychiatrists and administrators had at that
time planned only two programs for the unit, chemical castration using the drug cyproter-
one acetate, and psychosurgery. When these plans leaked out, public reaction was adverse.
The plans for these experimental forms of psychiatric punishment-as-therapy were
shelved, and the new unit appears headed toward the status of just another Adjustment
Center. Segregation, supra note 150, at 4. If so, this particular escalation will have been
arrested.
636 MISSISSIPPI LAW JOURNAL [vol.45
Some of the committee's members have reservations about the plans
for the "Prescription Program" (euphemistically termed by the Depart-
ment the "Rx" Program) on several grounds. For example, there is
some question as to whether it requires conformity in matters affecting
religious and political beliefs .... While it utilizes rehabilitation
rhetoric, it could be extremely punitive in result and likely to raise the
level of tension and alienation among the inmates. [T]here must be
concern with any program whose method is a quite detailed regimenta-
tion of daily life and whose logic and vision may raise the spectre of
the resocialization, rethinking and brainwashing camps of totalitarian
societies.158
Programs which, like the Prescription Program, use behavior modi-
fication or operant conditioning language are in operation in about 20
states, according to Alvin Bronstein, Director of The National Prison
Project of the American Civil Liberties Union.139 The Federal Center for
Correctional Research will include a "behavioral research section" for
the same types of prisoners as were sent to the Prescription Program;
while in New England the majority of the state Governors have "tenta-
tively agreed to back a new joint facility for 'special offenders' that will
depend on behavior modification including the 'use of drugs to control
disruptive behavior.' ",fi0
Prisoners represented by The National Prison Project of the Ameri-
can Civil Liberties Union have challenged two prototypic examples of
the escalation of psychiatric punishment-as-therapy.161 At the Federal
Penitentiary at Marion, Illinois, following a disturbance in the summer
of 1972, about 115 men were placed in a new "Control Unit Treatment
Program." The treatment consists of being locked up in "strip" cells
containing only a bunk and a toilet for 23 V£ hours per day. The guards
determine the rate of "therapeutic progress" by studying the prisoners'
comments and reading their mail. A lieutenant with a high school edu-
cation supervises this therapy, and he is assisted by a prison psycholo-
gist who visits less than once a week. In other words, the Control Unit
Treatment Program is much like an Adjustment Center and, of course,
mQuoted in 1 Human Control & Experimentation Digest 10 (1974). The Select
Committee's report is better known as the "Jones Commission Report."
''"Time, March 11, 1974, at 75.
mId. M. Dumont, Assistant Commissioner for Drug Rehabilitation, Massachusetts
Department of Mental Health, has criticized the plan. Noting that 35 percent of the men
identified as "special offenders" had been so labeled at least in part because of "political
protest" activities, Dumont saw a "dangerous possibility that political activists, organiz-
ers, and protesters in prison will be seen as 'special offenders' who require massive and
highly professionalized forms of control." 6 Science for the People 43 (March 1974).
Camacho's outlook (note 146 supra) indicates good reason for Dumont's concern.
""Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973).
1974] PSYCHIATRIC VIOLENCE 637
like the traditional hole.lfi2 The court has recently ruled that treatment
or not, the program constitutes cruel and unusual punishment, both
intrinsically and in its disproportion to the magnitude of the offenses
during the 1972 disturbance.1"3
The second behavior modification program the American Civil Lib-
erties Union has challenged is the START (Special Treatment and Re-
habilitative Training) unit at the Medical Center for Federal Prisoners,
Springfield, Missouri.184 Theoretically, START, following Skinner's
advice,1"5 eschews punishment. However, the "positive reinforcements"
available in the program begin from a base of privation that goes beyond
that permitted under the Bureau of Prisons' regulations. These depriva-
tions, essentially those of the Adjustment Center or hole, are justified,
the Bureau of Prisons maintains, because regulations on punitive segre-
gation do not apply: START is not punishment, but treatment."56
A recital of the attorneys' allegations that START violates constitu-
tional rights of freedom of speech, freedom of religion, freedom from
unwarranted search and seizure, and freedom from invasions of pri-
vacy"57 would not fully convey the atmosphere of START. That atmos-
phere is perhaps better expressed by the following incident. The START
program prohibits prisoners from expressing opinions when, in the
guards' judgment, "such expression 'interferes with the orderly opera-
tion of the program.' "1(5S On February 3, 1973, Albert Gagne attempted
to return legal papers to Edward Sanchez. A guard, perhaps conscious
that such papers could indeed interfere "with the orderly operation of
the program," ordered Gagne not to return Sanchez's papers. Gagne did
not comply, and he alleges that when he walked a few steps further he
was seized and beaten by four guards, thrown into his cell, and tear-
gassed while inside. According to his affidavit, he and four other prison-
ers who verbally protested these proceedings
were then placed on our stomachs with feet shackled to the bed frame
and hands handcuffed behind our backs. We remained shackled until
Monday, February 5, 1973. During this period I refused to eat because
I would have been forced to eat "dog-style." Additionally, I was forced,
because of the refusal of the guards to release me, even for short peri-
lfi2Telephone interview with A. Saunders, Jr., attorney for The National Prison Pro-
ject, March 14, 1974.
,B3Adams v. Carlson, 368 F. Supp. 1050 (E.D. 111. 1973).
lfi4Sanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973).
lfi5See text accompanying note 74 supra.
lfifiSanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973).
'""Sanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973) (Plaintiffs' Motion for
Partial Summary Judgment, Jan. 7, 1974).
mId. at 20-21. The internal quotation is from a START document.
638 MISSISSIPPI LAW JOURNAL [vol.45
ods, to void my bodily wastes upon myself, the bed and floor.169
One may surmise from this incident, and from many others of like
nature, that START and its sister programs attempt to "[break] the
spirit of man ... in the service of obedience."170 That objective would
be in keeping with the official aim of START, which is to make it
"possible" to return troublesome prisoners from segregation status to
the general prison population. From the prison administrator's point of
view, a prime function of the hole is to break the will of prisoners who
are leaders or militants so that they will not constitute a challenge to
official authority. When long periods in isolation fail to produce submis-
sion (note Gagne's refusal to eat "dog-style"), it is logical to resort to
more extreme measures such as START. Since these more extreme mea-
sures go beyond constitutionally permissible standards of punishment,
it is necessary to invoke the name of treatment.
Psychiatrists and psychologists may not have taken the proponent
of violence role in START and similar programs. The planning docu-
ments for START read like the corresponding documents for the Adjust-
ment Centers. START is to proceed by "establishment of an Environ-
ment where Growth and Changes of the Inmate Occurs [sic]."171 This
is to be accomplished by "Implementation of Generalized and Specific
Treatment to Meet Individual Needs. . . . Communication should be
open at all times between staff and inmates . . . ."172 There is no reason
to suppose that the men who drafted these therapeutic plans for START
wrote in a spirit of derisive sarcasm and contempt, nor that the psychia-
trists had in mind such "negative reinforcers" as those described by
prisoner Gagne. Psychiatrists and psychologists do continue, however,
to play important roles in the Bureau of Prisons' legal struggle to con-
tinue programs like START.173 Whether their court testimony and con-
tinued support of START comes from the complaint accomplice, the
lfi9Sanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973) (Affidavit of Albert
Gagne).
,7"W. Gaylin, In the Service of Their Country: War Resisters in Prison 330 (1971).
See also notes 84 & 99 supra.
I7IN. Carlson, Procedures for Processing Participants into Project START (Special
Treatment and Rehabilitative Training) Oct. 25, 1972 (Bureau of Prisons Operations
Memorandum 7300.128).
mId.
,7:iThe Bureau of Prisons announced the termination of START for "economic"" rea-
sons shortly after two of three court-appointed experts in behavior modification had sub-
mitted negative reports on the program. See note 6 supra. However, the Director of the
Bureau, Norman Carlson, remains convinced of the value of programs like START. He
recently told a reporter: "We're going to start [behavior modification] programs in all
our penitentiaries' segregation units. Only they won't have titles that carry such emotion."
Time, Mar. 11, 1974, at 75. Plus ca change, plus la meme chose.
1974] PSYCHIATRIC VIOLENCE 639
naive dupe, or the pressured subordinate role, only those involved could
say.174
2. Chemical Shackles and Chemical Torture
Perhaps the most ubiquitous form of violent punishment-as-
therapy in prisons is accomplished with tranquilizing drugs. To immobi-
lize a person against his will with drugs is violence for the same reasons
that chaining a person to the wall with shackles is violence.175 The com-
parison between the purpose of forced tranquilization by drugs and
shackling was suggested by the Assistant Director of the Illinois Depart-
ment of Corrections, J.S. Coughlin, who "has defended the use of tran-
quilizing drugs, such as Prolixin and Thorazine, as 'more effective and
humane' than 'manhandling or shackles.' "I7fi
There are at least two very important differences between shackling
and drugging. Shackling does not cause permanent damage to the
brain;177 and shackling is so conspicuous an inhumanity that it is limited
l74In a passive way psychiatry as an organized profession is also involved in legitimiz-
ing START and similar programs. In 1972 the trustees of the American Psychiatric Asso-
ciation (APA) appointed an Ad Hoc Committee on the Use of Psychiatric Institutions for
the Commitment of Political Dissenters to investigate reports emanating from the
U.S.S.R. A member of that committee, David Bazelon, Chief Judge of the U.S. Court of
Appeals for the District of Columbia, argued that American psychiatry should " 'stop
sweeping its own problems under the rug and conduct an in-depth inquiry into the use of
psychiatric discipline in the institutions of our own society,'" including penal institu-
tuions. The APA trustees endorsed Chief Judge Bazelon's proposal, funding was arranged,
and a team of researchers was hired. At the last minute the trustees backed off, disbanded
the Ad Hoc Committee, dismissed the researchers, and referred the matter to another
committee for possible action. Chief Judge Bazelon commented: "Our committee agreed
that what we experienced was the ranks of organized psychiatry defensively drawing
together; there was to be no scrutiny, even by insiders — even they might be foxes guarding
the henhouse." Miller, APA: Psychiatrists Reluctant to Analyze Themselves, 181 Science
246, 248 (1973). To know what is done in one's name, and keep silent, is to give consent.
Cf. notes 7 & 8 supra.
mSee note 12 supra: "forcibly interfering with personal freedom."
,7BResearch Department, International Secretariate, Amnesty International, Sum-
mary of Allegations of Medical and Psychiatric Ill-Treatment in United States
Prisons 2 (1974).
'"The phenothiazines (Thorazine, etc.), which are the most widely used major tran-
quilizers, cause tardive dyskinesia, a form of permanent brain damage, in a substantial
proportion of people who are exposed to the drugs over long periods of time. Symptoms
of tardive dyskinesia "include involuntary movements especially affecting the lips and
tongue, hands and fingers, and body posture. Consequently, speech may be seriously
affected, the face may become distorted and subject to uncontrolled expressions, and
sustained normal posture may become impossible." H. Lennard, L. Epstein, A. Berstein,
& D. Ransom, Mystification and Drug Misuse; Hazards in Using Psychoactive Drugs
73 (1971). Squibb, the manufacturer of the phenothiazine Prolixin, warns in its promo-
tional literature that the drug can cause "[a] persistent pseudoparkinsonian syndrome
640 MISSISSIPPI LAW JOURNAL [vol. 45
to a few prisoners, whereas drugging can be and is conducted on a large
scale. Bowers178 has compiled reports of extensive administration of
tranquilizers in state prisons in California, Oregon, Missouri, and Illi-
nois, and at the Federal Prison at Leavenworth, Kansas.
Most drugging is for the purpose of control, for keeping prisoners
quiet and docile. The phenothiazines have been used on a very large
scale for this purpose in public mental hospitals for many years, and the
advantages for convenience of administration are as real in prisons as
in mental hospitals. But some drugs lend themselves to use for punish-
ment or torture as well. An ex-prisoner told this writer: "If you speak
out, say things they don't like, if you're a leader, you know — it's an
unspoken threat: they'll put you on Prolixin."179 Another prisoner said:
"They use Prolixin more for punitive action than for medical purposes.
Someone expressing anger toward the system, or anyone in it, is viewed
as expressing bad attitudes and is labeled 'incorrigible.' "180 Prolixin is
approved by the Food and Drug Administration as a treatment for psy-
chosis. Since speaking out, being a leader, expressing anger, or having
bad attitudes are not diagnostic of insanity, psychiatrists who signed
prescription forms on the basis of such "symptoms" might be liable to
legal action. According to Elena Ackel of the Western Center on Law
and Poverty, Los Angeles, California, prison psychiatrists have sur-
mounted this problem with a novel diagnostic classification that George
Orwell, inventor of Doublespeak, would have understood instantly:
The prison officials at this institution [California Men's Colony] . . .
have also created a new classification called "psychotic repression"
meaning that the inmate is psychotic but he is repressing the symp-
toms of his psychosis. ... It is apparent that the drug [Prolixin] is
also used for control purposes — to undermine resistance and quiet
chronic complainers.181
One of many descriptions of the effects of Prolixin in large doses will
suffice to indicate why it is termed a punishment and torture, as well
as an agent of control:
. . . characterized by rhythmic, jerky, involuntary movements, particularly of the face.
mouth, tongue and jaw, resembling the facial grimaces of encephalitis . . . ." See also
Crane, Clinical Psychopharmacology in its 20th Year, 181 Science 124 (1973); Crane.
Persistent Dyskinesia, 122 The British J. of Psychiatry 395 (1973).
mJ. Bowers, Protecting the Convict from the Perversions of Prison Reform 3 (undated
manuscript on file at The Wright Institute).
"'Interview with the writer, March 7, 1974.
""'Newsletter of the Committee for Prisoner Humanity and Justice (San Rafael, Cal.,
Jan. 1974), at 5.
ikiCiba Foundation Symposium, Medical Care of Prisoners and Detainees 17 (1973).
1974] PSYCHIATRIC VIOLENCE 641
Q: How long were you forced to take his medicine?
A: For six weeks.
Q: How many shots did you get?
A: Three. Each one lasted about two weeks.
Q: Will you describe your feelings and how the drug affected you?
A: There is no other feeling like it. Nothing to relate it to, no experi-
ence anyone would normally go through in their life. It affects you
mentally and physically and you feel suicidal. The physical effects are
so bad you can't stand it. You get muscle spasms, predominantly in the
legs, but also in all other parts of the body including your facial mus-
cles. You get lockjaw; you can't control your tongue; you get leg
cramps. You get so tired (as if you've been up three days in a row) you
lie down. But you can't stay down for more than three or four minutes
because your knees begin to ache, an itching type ache.
Your thoughts are broken, incoherent; you can't hold a train of thought
for even a minute. You're talking about one subject and suddenly
you're talking about another. You start to roll a cigarette, drop it, pick
up a book,. take a shit, forget to wipe your ass. Your mind is like a slot
machine, every wheel spinning a different thought.
Q: Were you watched so that signals detrimental to your health would
be caught?
A: No one watches you in the hole. A doctor visits you once a day and
sees you going through your gyrations.
Q: Did he examine you?
A: Only visually — in passing from one cell to another — a glancing
diagnosis.
He never entered?
A: No.
Q: Were there other men being given Prolixin at the same time?
A: There were dozens of others. About 200 men.
What do you mean, feeling suicidal?
A: ... The thought of suicide keeps recurring in order to alleviate,
once and for all, the torturous effects of the drug.
Q: Why did they stop the shots after six weeks?
A: My attorney visited. After seeing me he talked with the doctor,
who said I was "suicidal" as a side effect of the drug. The attorney
pointed out that I didn't have to take it if I did not want to. . . .
Finally they gave me Stelazine . . . .182
The role of the psychiatrist in prescribing tranquilizers for sedation
or punishment is probably a matter of going along with the wishes of
'"Newsletter, supra note 180, at 5-6.
642 MISSISSIPPI LAW JOURNAL [vol. 45
guards and other administrators in most cases. Such a role is that of
compliant accomplice, naive dupe, or pressured subordinate.
3. Keeping the Institution Full
Incarceration itself is a form of therapy-as-punishment when psy-
chiatrists advise parole boards whether a prisoner is "ready" to leave.
Psychiatrists are vulnerable to pressures to base such judgments not on
their professional opinion, but on the feelings of prison administrators,
district attorneys, and judges as to whether the prisoner-patient has
served "enough" time for the gravity of his offense.183
Pressures to take the compliant accomplice, naive dupe, or
pressured subordinate roles with respect to release of prisoners are not,
unfortunately, limited to others' feelings about individual prisoners.
Psychiatrists and psychologists receive pressure to keep their institu-
tions full, since budgets and jobs are allotted on a per capita basis.
When the administration decides to cut the budget the opposite pres-
sure— to certify more inmates as "ready" to leave — may also be im-
posed.184
Although this kind of psychiatric participation in therapy-as-
punishment requires but a few paragraphs to describe, it probably re-
sults in more man-years of punitive incarceration than all other forms
of therapy-by-punishment combined.185
The psychiatric roles so far described do not exhaust the possibili-
ties. The role of courageous opponent of punishment-as-therapy has
been occupied by a few prison psychiatrists and psychologists.186
III. SUMMARY AND CONCLUSIONS
This review has demonstrated that both in theory (Part I) and in
mSee« newspaper reports on alteration of medical records and the resignation of Dr.
Michael Serber from Atascadero State Hospital, California. Serber, subsequently rein-
stated and now Superintendent of the hospital, alludes obliquely to these events in a
remarkable letter to the editor, A Word of Warning to Behavior Modifiers Working in a
Restrictive Social Setting, 3 Behavior Therapy 517 (1972).
mSee Mann, Sentencing in California: A Study in Organizational Interaction,
Working Papers from the Program in L. & Society, No. 4 (June 1973). See also letter
from K. Mann to E. Opton, March 7, 1974. This sort of pressure on medical judgment is
not limited to prisoners. In 1958, when the writer worked at the Veterans Administration
tuberculosis hospital at Oteen, North Carolina, the number of tubercular veterans was on
the decline. Faced with a threat to job security, the hospital administration pressured the
physicians to pressure their patients to remain on inpatient status.
1H\See generally N. Kittrie, The Right to Be Different (1971).
mE.g. , Howard Gross, who resigned from the Missouri prison system in 1972 in protest
of the use of Prolixin. He said the drug caused "hunched backs 'like a cat when it gets
ready to fight.' " Summary of Allegations, supra note 176, at 2. For the reasons discussed
by Powelson & Bendix note 154 and accompanying text supra such men do not last long
in prisons.
1974] PSYCHIATRIC VIOLENCE 643
practice (Part II) psychiatric therapy in prisons is often indistin-
guishable from punishment. The impossibility of differentiating some
therapies from some punishments indicates not too close a similarity,
but an identity. Punishment has long been acknowledged an important
tool of psychiatric therapy and it remains well-recognized, though con-
troversial, today. Therapy and its synonyms, "corrections," "rehabilita-
tion," and "treatment," are prime motives of those who design and
operate the punitive institutions of society.
Over the years Americans have become very considerably less will-
ing to permit torture and other extremely severe punishments in their
penal institutions. The first, fourth, fifth, eighth, and ninth amend-
ments to the Constitution place some limits on legal punishments,187 and
feeble as these limitations are in practice,188 they do exist and they are
slowly acquiring real force and effect. Penal administrators turn, there-
fore, to therapy-as-punishment to carry out acts which, if named pun-
ishment, would be clearly illegal and immoral.
The courts have been exceedingly slow to see through this subter-
fuge. Only those practices most shocking to the conscience have been
prohibited, and those often only on appeal. Other practices which would
be shocking indeed if they were called punishment remain legal.
The reluctance of the courts to grant prisoners rights against
therapy-as-punishment has more than one source.189 The desire to
sanction draconian revenge — and to slay man's inner devils, which he
projects onto those labeled deviants190 — while excluding the responsibil-
ity from consciousness and conscience, is most important psychodynam-
ically. Calling the process "therapy" or "corrections" or "rehabilita-
tion" or "treatment" enables men to exclude the responsibility from
consciousness, and thus to keep the burden of punishment from the
consciences. But the most nearly logical basis for the courts' reluctance,
and the key rationalization, is the parens patriae theory.191 The parens
patriae theory assumes that the prison psychiatrist and psychologist are
motivated solely, or at least mostly, to help the prisoner and not to harm
him. The analysis in this article of the flux of pressures on the prison
'"Sanchez v. Ciccone, No. 20182-4, 3061-4 (W.D. Mo. 1973) (Plaintiffs' Motion for
Partial Summary Judgment, Jan. 7, 1974); Shapiro, supra note 85.
188Rubin, supra note 98.
mSee notes 95, 102, and 103 & accompanying text supra.
19flFor the theory of projection see Bellah, Evil and the American Ethos, in Sanctions
for Evil, note 95 supra, at 184-87; Comstock, Avoiding Pathologies of Defence, id. at 294-
95. For the creation of deviants by labeling see Currie, Crimes Without Criminals: Witch-
craft and its Control in Renaissance Europe, 3L. & Society Rev. 7 (1968). Currie con-
cludes "systems of repressive control tend to foster the growth of an 'industry' geared to
the official creation of deviance . . . ." Id. at 31.
mSee N. KiTTiRE, supra note 185, at 8-11.
644 MISSISSIPPI LAW JOURNAL [vol.45
psychiatrist shows that the assumption of good intentions, of parens
patriae, is untenable. The numerous examples of therapy-as-
punishment cited in this article show a pattern: unconstitutionally se-
vere and arbitrary punishment and torture of prisoners in the name of
therapy occurs on a major scale. Fueled by advances in medical technol-
ogy and by increasing legal limitations on punishment, therapy-as-
punishment is rapidly growing in frequency and intensity.
At a minimum, courts should apply to therapy -as-punishment both
rights against punishment and rights against treatment ,m This could
have very far-reaching effects, especially with respect to the indetermi-
nate sentence. The raising of the courts' consciousness may occur sooner
if opponents of involuntary, punitive therapy oppose it not on the
grounds that it is "really" punishment rather than therapy, but on the
grounds that it is both punishment and therapy, hence meriting the
constitutional and other legal safeguards of both.
C.S. Lewis summarized this reasoning well:
Of all tyrannies a tyranny exercised for the good of its victims may
be the most oppressive. It may be better to live under robber barons
than under omnipotent moral busybodies. The robber baron's cruelty
may sometimes sleep, his cupidity may at some point be satiated; but
those who torment us for our own good will torment us without end for
they do so with the approval of their own conscience. ... To be
"cured" against one's will and cured of states which we may not regard
as disease is to be put on a level with those who have not yet reached
the age of reason. . . . You start being "kind" to people before you
have considered their rights, and then force upon them supposed kind-
nesses which they in fact had a right to refuse, and finally kindnesses
which no one but you will recognize as kindnesses and which the recipi-
ent will feel as abominable cruelties.193
192For a more detailed exposition see N. Kittrie, supra note 185.
l9:!Quoted in a pamphlet by Network Against Psychiatric Assault (San Francisco.
March 1974).
THE "CLOSING" OF O WING AT SOLEDAD
PRISON: REFLECTIONS ON THE USE OF
LOCK-UP
Fay Stender*
I. SOLEDAD 1970-71t
A. Introduction
In the prison world time is the ally of bureaucrats. Prison authori-
ties are almost absolute, almost completely unrestrained in their power
to restrain others. For outsiders, whether lawyers, former prisoners, or
other citizens, who would work to check this power and thus help prison-
ers retain and regain their rights as human beings, time is an antagonist
with almost as much force as the absolute power of the bureaucrats.
This article examines one particular attempt at reformation: an
attack, in 1970-71, upon the terrifying practices in the maximum secu-
rity sections at Soledad Prison in California. The failure of this fairly
elaborate effort shows in practical terms the immutable power of the
prison and the ability of the warders to outlast those who would call
them to account.
The penal euphemisms are similar in California to those used else-
where. The people who run California's prisons are known as "correc-
tions" personnel. The prison at Soledad is known to them as a "correc-
tional training facility" (CTF). The "maximum security" section of the
central prison building, 0 Wing and X Wing, in which a man is confined
by himself in a 6 foot x 10 foot x 8V2 foot cell for 23 Vz hours a day, is
known to corrections personnel as the "Adjustment Center" (A/C). Thus
in official terminology of the California Department of Corrections
"CTF Central A/C 0-1" refers to the first floor of Soledad's 0 Wing. The
abbreviations are part of the language of insulation which separates
these men from the consequences of their actions. Their victims know
"CTF Central A/C 0-1" as "Max Row" in "the hole," a place where they
may be locked up indefinitely for unspecified reasons, denied privileges
accorded other prisoners, and subjected to brutal, degrading, and even
lethal assaults upon their bodies and their minds.
*B.A. 1953, University of California, Berkeley; J.D. 1956, University of Chicago. Co-
founder Prison Law Project, Oakland, California.
The author is greatly indebted to Henry Mayer for research, writing, and editorial
assistance.
f Editor's Note: All quotations in this article are exact transcriptions of the letters,
documents, and statements cited. Sic is not used.
645
646 MISSISSIPPI LAW JOURNAL [vol. 45
Today, as in 1970, there are slight differences between 0 and X
wings. In 0 Wing the cells have solid walls on three sides and a barred
door covered with heavy steel mesh in some instances, and there is a
narrow slot through which food is passed. Air is circulated through ven-
tilators; there is no natural light. In X Wing the cell door is of solid
metal, except for a small opening and a food tray slot. On 0 Wing the
gun tower is outside, overlooking the exercise yard; on X Wing the gun
command post stands in the corridor between the tiers. Cells on the
upper tiers of X Wing have windows, and inmates were permitted to
request educational books from the prison library. 0 Wing inmates
could order only law books and were permitted to keep them for only a
few days at a time.
On both wings the cells were and are furnished with a bed made of
solid steel suspended 2 feet off the floor, a toilet, and a sink. These
furnishings occupy most of the available space. Both wings have even
smaller isolation cells; the screaming of a man in "isolation" cannot be
heard on the rest of the wing.
There are a total of five Adjustment Centers in the California state
prison system. The official rationale for these sections is that they are
for the confinement of inmates with a record of violent and dangerous
prison behavior. Dr. Frank Rundle, chief psychiatrist at Soledad in
1970-71, estimated that less than 5 percent of the population in the A/C
were "truly violent" types, and men he would so classify had spent "up
to ten years" in Adjustment Centers and were "psychologically de-
stroyed" by the experience. About 20 to 30 percent of the inmates in the
Adjustment Centers are mentally ill and in need of hospitalization.
Some men are confined for their own protection, and some at their own
request, but the majority are locked up for relatively minor prison offen-
ses, generally ones that indicate a disrespect for authority. Men of out-
spoken political views are often classified as "agitators" and sent to the
Adjustment Center where they may view themselves as political prison-
ers, and where they are often referred to by prison authorities as politi-
cally oriented prisoners.1
In July 1965 Robert Charles Jordan, Jr., a black prisoner on 0
Wing, was confined for 12 days in a "strip cell" in the isolation section.
The cell was completely dark and contained no furnishing except for a
raised concrete commode that could not be flushed from within the cell.
The bodily wastes of previous occupants still covered the floor; the
continuous stench gave Jordan frequent spasms of nausea; his vomit
'See In re Hutchinson, 23 Cal. App. 3d 337, 100 Cal. Rptr. 124 (3d Dist. 1972) (Affida-
vit of Frank Rundle, M.D. Exhibit 3 to Petition for Writ of Habeas Corpus in the 3rd
Appellate District, therein numbered 3 Crim. 4328). See also Hollander, The Adjustment
Center, California's Prisons within Prisons, Black L.J. (UCLA) 152. (1971).
1974] THE "CLOSING" OF 0 WING 647
was never cleaned up. He was compelled to sleep upon the cold and
filthy floor, with only a stiff 4 172 foot x 5V2 foot canvas mat as cover; the
mat was too stiff to be folded in a way that would allow Jordan, 6 feet 1
inch tall, to sleep under it. For the first 8 days, Jordan was denied all
clothing. For the entire period he had no means of cleaning his hands,
body, or teeth, and was forced to handle his food without any provision
for sanitation.
This was not Jordan's first such experience. He lived under re-
peated threat of strip cell confinement. On 0 Wing he occupied a cell
directly opposite windows without panes, so that he was exposed to
rainstorms and other inclement weather. If he complained about this or
any other abuse, he was liable to be put in a strip cell for up to 60 days
at the discretion of the 0 Wing guards.
Jordan initiated a federal lawsuit against Soledad Superintendent
Cletus Fitzharris and other Soledad prison officials, claiming that his
strip cell treatment violated his constitutional protection against "cruel
and unusual punishment."2 Judge George B. Harris, who heard the case,
personally visited Soledad and later held that the testimony of Jordan
and other inmate witnesses remained "clear and convincing" after
cross-examination.
In his opinion, now famous for initiating some of the recent changes
in prison law, Judge Harris reiterated that:
|U|sually the administrative responsibility of correctional institutions
rests within the province of the officials themselves, without attempted
intrusion or intervention on the part of the courts. However, when as
it appears in the case at bar, the responsible prison authorities . . .
have abandoned elemental concepts of decency by permitting condi-
tions to prevail of a shocking and debased nature, then the courts must
intervene — and intervene promptly — to restore the primal rules of a
civilized community in accord with the Constitution of the United
States. :!
Judge Harris emphasized that "the security officers made no effort
to remedy the situation, notwithstanding persistent and violent com-
plaints on the inmates' part."4 His opinion took note, however, of the
remedial actions prison officials had undertaken as an apparent result
of the filing of Jordan's suit. Superintendent Fitzharris had reported
that: "[w]e have installed an automatic flushing device for the orien-
tal toilets in the strip cells. This eliminates the possibility of staff be-
coming involved in other matters and not flushing the toilets with regu-
2Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).
Hd. at 680.
'Id.
648 MISSISSIPPI LAW JOURNAL [vol.45
larity."5 Further testimony indicated that by the time of trial, "an in-
mate so incarcerated [in a strip cell] now receives a basin, pitcher of
water, towel, toothbrush and toothpaste, toilet tissue, and is permitted
to shower once a week."6 Judge Harris permanently enjoined the subjec-
tion of prisoners to the cruel and unusual punishment given Jordan. He
did not, however, undertake to specify the precise procedures which the
officials were required to adopt if they were to meet the demands of the
Constitution. He ordered "at least" the revisions already reported and
conformity with strictures on ventilation, lighting, and sanitation enu-
merated in the Manual of Correctional Standards of the American
Correctional Association.
The court justified its intervention as necessary to correct the gross
abuse of official discretion, yet it relied upon the discretion of the Sole-
dad guards and administrators to choose specifically appropriate reme-
dies. Only the narrowest possible compliance resulted. In 1970 Robert
Jordan assessed the effects of his successful law suit, as follows:
There were, it is true, some minor changes in certain procedures
. . . slight physical adjustments to the mandate of the court order. The
strip cells are still such that a human being should not be made to
undergo incarceration in one. They are still dirty, they are still poorly
ventilated, they are still poorly heated and in most cases the lighting
provided is deliberately not turned on. . . . The amount of exercise
allowed inmates confined in a strip cell would not keep the muscles and
body of a year-old baby in tone and in good health. The open mouth
toilets are still smelly and the inmate must still eat his food within the
same space, within 5 feet of the smelly naseous fumes arising from the
toilet. It does not sound too bad when you say it or read it, but I would
like to record the reaction of the average citizen of the U.S. to the
suggestion that he or she eat 7 days a week, 3 times a day in their family
bathroom. The situation is further compounded by the fact that the
toilets in the strip cells are communal in nature and the previous user
may have been infected with a highly infectious disease. The toilets are
never given any disinfectant treatment, nor are inmates provided with
any, only with scouring powder.
The psychological aspects of the strip cells are unchanged. Strip
cells were and are designed with one purpose in mind: to break the will
and spirit of the inmate subjected to incarceration in such a cell. Not
to "control" the inmate. Not to "quiet down" an inmate. Not to pre-
vent an inmate from harming himself. Not to prevent an inmate from
agitating others. But purely and simply to break the inmate's will. To
break the inmate's spirit.7
Hd. at 681.
•Id. at 682.
7Maximum Security, Letters from California Prisoners 132-33 (E. Pell ed. 1973).
1974] THE "CLOSING" OF 0 WING 649
Although there was not a complete compliance with the court's
order, the fears expressed by Judge Harris were, unfortunately, fully
realized:
In the opinion of the court, the type of confinement depicted in . . .
the inmates' testimony results in a slow-burning fire of resentment on
the part of the inmates until it finally explodes in open revolt, coupled
with their violent and bizarre conduct/
Soledad had previously experienced racial riots in 1964 and 1965.
In 1968 several "major incidents" of inmate rebellion occurred, involv-
ing physical struggles with guards and property destruction. In that
year, three inmates were murdered by other prisoners, three inmates
were assaulted by other inmates, and one prisoner died "mysteriously"
at Soledad,. Almost all of these incidents involved racial strife. In 1969
there were two deadly assaults, two racial clashes, and one inmate labor
strike."
B. The Events of 1970-71
On the morning of January 13, 1970, the 13 inmates from "Max
Row" were stripped and searched before being released into the yard one
at a time, alternating by race. The corridor, says inmate Tomas Menew-
eather,
was congested with prison officials of all ranks . . . armed with an
assortment of tear-gas guns and containers, billy clubs, five-cell flash-
lights, and handcuffs .... [wearing] an assortment of expressions
from sneers, smirks, and nervous expectation to outright malicious
smiles."1
In the yard a fight broke out between a white inmate and W.L.
Nolen, a black inmate. The guard in the guntower 13 feet above the yard
fired four shots, killing Nolen and two other blacks, and wounding one
white inmate. Prison officials maintain that a warning shot was fired;
inmates deny the claim. Meneweather carried one of the mortally
wounded blacks to the 0 Wing entrance, but was forced to return to his
cell before guards would allow the bleeding man to be taken to the
hospital.
Inmate Hugo Pinell had been taken to Sacramento for a court ap-
pearance that day, and heard
[hereinafter cited as Maximum Security].
x257 F. Supp. at 680.
9Rundle, The Roots of Violence at Soledad, in The Politics of Punishment 164 (E.
Wright ed. 1973).
'"Maximum Security 137-38.
650 MISSISSIPPI LAW JOURNAL [vol.45
the news on the radio where it announced the killing of three inmates
at Soledad . . . while scuffling in the yard. Damn, for some reason I
knew what yard that man on the radio was referring to, because I fell
to my knees against my will, and tears rolled out of my eyes. Believe
me, Fm a man in every respect, but if you felt the tension we live under
you could easily understand a grown man crying .... I cursed people
out for no reason because, after all, it wasn't their fault. I returned here
[Soledad] the next day and I could smell death in the air. The tier
was like a tomb — I was put in my used to be personal friend's cell; W.L.
Nolen. I asked what happened and they told me (blacks) that W.L.
Nolen, Cleveland Edwards and Alvin Miller were shot down like ducks
in a pond. Pay full attention to what I have said, because even today
we live under the same conditions and that murder out in the yard
could easily have been me or the rest of the blacks down here. Or maybe
we get it next time? All I do is ask myself "Is this the price a man has
to pay for wanting to be Black and respected as such, as he respects
others?" I tell you, it is cold-blooded!"
The exercise yard killings left its black survivors with a mixed leg-
acy of melancholy fear and aggravated bitterness which — in the nearly
hysterical atmosphere of O Wing — would haunt Soledad for many
months to come.
Prison officials indicated no perceptions of these feelings in their
reports of the shootings. Superintendent Fitzharris' initial report to
Director of Corrections Procunier, dated on the day of the incident, is
callously entitled: "Incident Report — Racial Gang Fight on 0 Wing
Yard. Sixteen (16) inmates involved. Four shots fired and four men
wounded and removed from the yard."12 An acknowledgement of the
deaths of the three "wounded" black men is literally buried in technical
language quoted from a medical report. Six of the eight blacks are
characterized as "racial extremists" although none of the whites are so
described.13 A report dated January 14 (1970) to Fitzharris from 0 Wing
Program Administrator E.A. Peterson loosely describes the late Cleve-
land Miller as a "racial agitator at CTF/N prior to coming to Central"
and repeats the contention of a Riverside (California) County Jail offi-
cial that Miller "was one of the most dangerous inmates they ever
had."11 The implication is clear that their hearsay reputations were
considered justification for their summary execution. Peterson pointed
out that the "hate or alliances [among the men in lock-up] go deep and
"Letter from Hugo Pinell to Fay Stender, August 21, 1970, on file at the Prison Law
Project, Berkeley, California.
^Incident Report of Soledad Correctional Training Facility, January 13, 1970, on file
at the Prison Law Project.
Hd.
"Id.
1974] THE "CLOSING" OF 0 WING 651
many are of long years standing, i.e. a friend of mine was stabbed by a
friend of yours, so I'm going to have to stab you."15 Such language also
might be used to describe the mental states of the constabulary as well.
Peterson's statement, moreover, might also be taken as prophecy. Three
days after the exercise yard shootings, on January 16, 1970, the Monte-
rey County District Attorney publicly told reporters that, in his personal
opinion, the killings were "probably justifable homicide by a public
officer in the performance of his duty."16 That night a Soledad guard was
found dead in Y Wing at Soledad Central.
Three black inmates, George Jackson, John Clutchette, and Fleeta
Drumgo were moved to Max Row, 0 Wing, and subsequently were
charged with murder of the Y Wing guard. The legal defense of these
three prisoners, who became known as the Soledad Brothers, developed
into a prison movement focusing around a campaign against conditions
in 0 Wing.17 It is this campaign, which broadened into an attempt to
end the use of lock-up as a major penological tool in California, which
furnishes the object lessons of this article. As the attorneys and their co-
workers began to visit Soledad to interview the accused prisoners and
the inmate witnesses to the murky events in Y and 0 Wings, the lawyers
began to feel the extent of 0 Wing terror.
A steadily increasing number of inmates began to write letters to
the Soledad lawyers, outlining the barbarous and discriminatory treat-
ment they had experienced. The letters described the provocative be-
havior by guards — especially racial vituperation and the deliberate mix-
ing of violatile racial groups — designed to goad inmates into angry reac-
tions that would lead to a disciplinary "write-up." They told of the
extraordinary discretion employed in disciplinary procedures; the un-
stated rules, the presence of the accusing officer on the hearing panel,
the inability to make an adequate defense by calling witnesses, etc. The
letters described extreme and needless deprivation, beyond what would
reasonably be necessary to maintain order. In this context of discipli-
nary deprivation, they related innumerable examples of inadequate and
delinquent medical care.18
The legal workers gathered around the Soledad Brothers case began
an effort to probe deeply into these issues, to get beyond the superficial-
ity and deceptions of "official" versions. They felt a moral imperative
to act upon what they had learned and undertook the political task of
teaching people the need to act against these forms of social injustice.
Hd.
lfiYee, Death on the Yard, Ramparts, April 1973, at 39.
17Attorneys included Fay Stender, San Franciso; John Thome, San Jose; Floyd Silli-
man, Salinas; Richard Silver, Carmel.
1HSee generally Maximum Security.
652 MISSISSIPPI LAW JOURNAL [vol.45
Their activities directly countered the official efforts at public relations
which sought to dissuade people from thinking that their engagement
or action was necessary.
The techniques of such political education were numerous and in-
cluded public speaking, preparation and distribution of literature, at-
tempts to secure adequate press and radio-television coverage, organiz-
ing campaigns to inform public officials, securing the involvement of
state and federal agencies and private experts, and the creation of an
ever-widening circle of people actively engaged in talking to groups of
their own special concern. Many struggles developed within the defense
group over the priorities of one activity over another. Would a large
public demonstration jeopardize contacts with influential, yet cautious
politicians? Was it worthwhile to spend any time chasing after such
people, since such efforts are generally doomed to futility and take time
away from other, more promising tasks and obligations?
"Getting through" to politicians, who lead busy and well-protected
lives, often insulated from direct contact with the flow of everyday life,
was an especially frustrating task. Keeping news media reporters well
informed and interested was developed into a political art of considera-
ble proportion. As in any educational campaign of this type there was
much wasted effort; setting up events that never quite came off, enlist-
ing people who proved ultimately ineffectual or chasing after those who
never responded favorably, haggling endlessly over fine points of politi-
cal detail. This latter process worked, as always, as a major barrier to
general reform, but the description here is intended to provide some
understanding of the limits placed upon the efforts to educate public
opinion about O Wing in 1970-71.
Efforts were made to secure a legislative investigation into condi-
tions at Soledad. Phrasel Shelton, a Salinas attorney working with the
Public Defender's Office in Monterey County, began calling for an
official, biracial investigation almost immediately after the Grand Jury
returned its verdict of justifiable homicide in the exercise yard killings.
During interviews with Pacifica Foundation Radio Station KPFA in
March 1970, three black legislators, State Senator Mervyn M. Dymally,
and Assemblymen Bill Greene and Willie Brown, Jr., had supported the
idea of an investigation into Soledad and prison conditions generally.
Brown indicated the hope that a blue-ribbon citizens group might be
convened to examine the Soledad situation,19 and all three legislators
intimated that, if nothing else, an ad hoc investigation would be under-
taken by the black legislative caucus. Senator Dymally had, in fact,
already visited Soledad on February 1, 1970, where he was upset at the
l9Soledad Prison Interviews, by Elsa Knight Thompson, March 1970, on file at Paci-
fica Tape Library, Los Angeles, California.
1974] THE "CLOSING" OF 0 WING 653
sight of George Jackson in chains and unable to light a cigarette.
Despite these expressions of concern, nothing came of these first
suggestions to secure either a legislative or citizens' investigation. In
May 1970 the Soledad attorneys received a desperate phone call from a
University of California faculty member at Santa Cruz stating that a
reliable staff source at Soledad had warned him that the lives of five
black inmates were in immediate danger. Lawrence Mansir, Deputy
Attorney General, and Edward Barnes, Deputy District Attorney in
Monterey County, were informed of this. The names of the inmates were
made public, and they were immediately transferred. Telegrams were
also sent to each of the black members of the legislature informing them
of this situation along with a five-page sample compilation of letters
from the Soledad inmates. These complaints emphasized the physical
brutality of the guards, the irrational madhouse atmosphere which "jus-
tified" keeping nearly half of 0 Wing on tranquillizers, the endemic
racism, and shocking denials of medical care for epileptics and others
suffering from undiagnosed internal ailments.20
The legislators invited Soledad Director Procunier to discuss these
reports with the caucus. Attending a meeting on the subject were As-
semblymen Brown, Bill Greene, John J. Miller, and Leon Ralph, legisla-
tive aide James Turner, Attorney Fay Stender, and Procunier. Procu-
nier saw no need for a biracial investigating committee. Upon being
handed the compilation of inmate letters, he glanced at the first page
and said, "Lies. Furthermore, I will take you there and show you." He
stated the visit would be unannounced, but later informed the delega-
tion which was to visit Soledad that he had changed his mind on this
point. The visit was announced before hand to the Soledad staff. Sena-
tor Dymally was selected as caucus representative, and, accompanied
by Turner, State Senate Consultant Daniel Visnich, Stender, and Eve
Pell, visited 0 Wing on June 1, 1970. In the few days prior to the visit,
members of the Soledad defense team assisted Senator Dymally's staff
in preparing a questionnaire to be distributed at the prison and gener-
ally attempted to brief the staff with what they had learned about the
prison in the previous several months.
The Dymally group spent 2 hours on 0 Wing. Dymally listened to
the talk of the caged inmates and seemed visibly touched. Inmate
'^Communications from Inmates on 0 Wing, Soledad Brothers Defense Committee,
mimeo 5 pp. May 1970, on file at Prison Law Project. See also Black Caucus Report,
Treatment of Prisoners at California Training Facility at Soledad Central (1970)
(Report for the California Legislature) available from Senator Mervyn Dymally, State
Capitol, Sacramento, California [hereinafter cited as Black Caucus Report] reprinted
in Hearings on Corrections Before the Subcomm. No. 3 of the House Comm. on the
Judiciary, 92d Cong., 1st Sess., Part II, Prisons, Prison Reform & Prisoners' Rights, Ser.
No. 15,252 et seq. (1971) [hereinafter cited as 1971 Hearings].
654 MISSISSIPPI LAW JOURNAL [vol. 45
Eugene Grady told him he had received no medical attention for an
ulcer condition, although he had been spitting blood for some time.
Other inmates repeated stories of contaminated food and racial abuse.
Dymally met some inmates who told him they had been placed in O
Wing for "investigation"; others said they had no idea why they had
been removed from the relative freedom of the general population. The
group only learned after its visit that seven more black inmates had
been recently assigned to 0 Wing, and were there on the day of the tour,
as punishment for collecting money from inmates for the Soledad Broth-
ers Defense Fund.21
Frank Powell, an aide to Procunier, followed Dymally around and
murmured, "Yeah, I'll take care of it" as various complaints were elo-
quently lodged. When asked how that would be possible, since he was
taking no notes, he pointed to the numbers along the cell doorways and
said, "I'll remember."
The visiting delegation was visibly stunned by the dislocation of
walking along the upper tier, hearing the shouts of men in isolation, and
the metallic reverberations from men beating on their cell walls. Later,
George Jackson's words would be published in Soledad Brother:
[A| man's thoughts become completely disorganized. The noise, mad-
ness streaming from every throat, frustrated sounds from the bars,
metallic sounds from the walls, the steel trays, the iron beds bolted to
the walls, the hollow sounds from a cast-iron sink or toilet — when a
white con leaves here he's ruined for life. No black leaves Max Row
walking. Either he leaves on the meat wagon or he leaves crawling
licking at the pig's feet.22
After the 0 Wing visit, the group met with Procunier and Superin-
tendent Fitzharris. When Senator Dymally asked Fitzharris about
Eugene Grady's ulcer condition, Fitzharris replied: "We have to have a
lot of blood before we give an X-ray. Otherwise everyone would want
one." Procunier told the visitors that reports of urine and feces should
not be believed. He was asked to explain the prevalence of such reports
and was unable to give an answer. Procunier denied permission to circu-
late the staff questionnaire to the black inmates of 0 Wing, but did
consent to allow three staff aides of the black caucus to make a more
extended visit to Soledad on June 18-19.
After this second visit, which entailed extensive interviews with
both inmates and officials and visits to other sections of the prison, the
legislative staff prepared a draft report and recommendations for which
21 1971 Hearings 255.
22George Jackson letter to Fay Stender, April 1970, in G. Jackson, Soledad Brother
26 (Bantam Books ed. 1970).
1974] THE "CLOSING" OF 0 WING 655
Senator Dymally secured the approval of the black caucus. Printing
delays held up publication of the report, but it was finally released, with
the state seal on its cover, on August 2, 1970.
The report summarized the visits and complaints heard, and con-
cluded:
Neither group of visitors had enough time or manpower to investigate
any of the charges in detail. However, all were convinced that racist
attitudes and practices on the part of correctional officers were common
at the Soledad facility. ... If even a small fraction of the reports
received are accurate, the inmates' charges amount to a strong indict-
ment of the prisons' employees (on all levels) as cruel, vindictive, dan-
gerous men who should not be permitted to control the lives of the 2,800
men in Soledad.23
The report warned that without an independent investigation author-
ized by the legislature, the authors feared that the legislature would be
encouraging policies which "every legislator would find repulsive."24 The
black caucus also urged the creation of a prison board of overseers inde-
pendent of the Department of Corrections, empowered to evaluate in-
mate allegations of mistreatment. Such a board, the report urged,
"would serve to right, if only slightly, the absolute absence of 'civilian'
control over prison employees, which now allows all manner of informal
(sometimes corporal) punishment to go unchecked."25
Other recommendations emphasized the need for prison officials to
end intentional intimidation, to provide procedural safeguards in disci-
plinary hearings, as well as annual medical check-ups, psychiatric eval-
uations for staff having regular inmate contact, in-service staff training
on racial and ethnic issues, and increased exercise time for men on 0
Wing, pointing out that the 23 Vi hour lock-up defied "rational explana-
tion" and contributed to the high tension and outbursts of violence.26
The report pointedly asked for the removal of Correctional Officer Mad-
dix, who "personifies the racism, brusque demeanor, harsh vocabulary
and authoritarian attitudes which are so detrimental to proper and judi-
cious inmate/staff relations."27
In response to the Black Caucus Report, which he termed "unfair,"
Cletus Fitzharris announced that he would welcome a "professional
investigation" into Soledad. Arguing that the press had been given an
exaggerated impression of racial problems at his prison, Fitzharris told
2:!Black Caucus Report 5.
2iId.
"Id.
2Hd. at 257.
27Id. at 256.
656 MISSISSIPPI LAW JOURNAL [vol. 45
reporters, "I don't think it's so bad here."28
Yet Officer Maddix was shortly thereafter removed from 0 Wing,
and the exercise period was extended from 30 minutes per day to 1 hour
per day. The more thoroughgoing proposals made by the Black Caucus
received little, if any, public consideration, perhaps partly because the
report was eclipsed shortly after its release by the dramatic kidnapping
and shooting incident at the Marin County Civic Center involving
George Jackson's brother Jonathan, giving rise to the prosecution of
Angela Davis and Ruchell Magee. This news clearly had the effect of
making it more difficult for prominent and sympathetic politicians to
discuss the prison conditions from which such violence grows.29
California prison officials used their own considerable arsenal of
public relations techniques to counter the attention being drawn to 0
Wing by those who would change it. On August 25, 1970, corrections
officials invited representatives of the major national newspapers, mag-
azines, and television networks to tour the prison. Soledad legal defense
workers learned of this impending tour from a sympathetic newsman the
evening before it was to take place. Pacifica Radio Station KPFA was
alerted and sent an uninvited news team to the prison. Hugo Pinell's
letter of August 21, 1970 was furnished to KPFA's team with sufficient
copies to distribute to the press assembled at Soledad.30 Officials were
questioned closely about the letter, as the photographs Pinell described
were being handed out in press kits, and, urged on by the suggestion of
hidden practices, a photographer and TV film crew managed to get
themselves escorted through 0 Wing early enough in the day to permit
interviews with inmates to make eastern network news deadlines.
2xSan Francisco Chronicle, August 4, 1970, at 2, col. 3.
29Ms. Davis was acquitted; Ruchell Magee faces a second trial after lengthy and tragic
court battles.
!,l[W]hat good does it do to withstand all these injustices if we remain in the
same dungeon day after day? We are cautious! We are well behave and yet
nothing is granted. We simply don't want to remain down here any more. Today,
some people from main line came around gifting ice-creams to every inmate
down here! Plus they brought a photographer to take pictures while the ice-
cream was being dish out! Can you see the picture? That has never been done
before in the history of Max Row since I've been aware of this tier which goes
back to 1965. . . . These officials continue on making us /all/ walk down the
hall-way with our hands cuffed behind our back. This shows two things: "ani-
malistic treatment and insecurity to the inmate of Max Row because our pic-
tures are paint as those of true incorrigibles — which is not true — and this can
endanger the Max Row inmate's life while walking in this manner and he has
no defense of self." — [I] want you to know we didn't ask or wanted any ice-
cream or any of their photographs and that we understand why it was done and
that it was against our consent ....
Letter from Hugo Pinell to Fay Stender, August 21, 1970, on file at the Prison Law Project.
Berkeley, California.
1974] THE ^CLOSING" OF 0 WING 657
Soledad continued to be a focus of national press coverage during
the winter of 1970-71. The publication in October 1970 of George Jack-
son's prison letters drew more attention to the case and conditions on
O Wing. The book sold 250,000 copies in its first year of publication and
has now been translated into 14 languages.
But the tempo of events within Soledad prison in 1970-71 had
quickened. On July 7, 1970, nearly all the inmates of O Wing burned
clothing and mattresses and staged a hunger strike to protest continued
physical abuse.
On July 13, 1970, a white guard named William Shull was fatally
stabbed in Soledad North. Fifteen suspects were immediately trans-
ferred to O Wing. One black inmate, Roosevelt Williams, recalled being
removed from his north cell without explanation; en route to "the hole"
a guard told him, "You're going to the gas chamber." Later, in O Wing,
"I just lay there," said Williams. "I thought, they're going to kill me."31
Prison officials first investigated Mexican-American inmates with
whom Shull had been having difficulties but failed to establish any case
at all.
The authorities then focused their inquiry upon a group of black
inmates who had organized an evening tutoring class which officials
held to be a wellspring of prison militancy. In September seven black
prisoners, including Roosevelt Williams, were charged with murder and
conspiracy, and a second dramatic Soledad prison case began to make
headlines, further aggravating suspicion and tension within the institu-
tion.'2
In October of 1970, Officer Maddix, who had been removed from
Max Row following the publication of the Black Caucus Report, was
reassigned to the second-tier of O Wing, where most of the "activist"
blacks had been sent. Meneweather, Pinell, and 15 other inmates wrote
the following:
October 23, 1970. Dear Attorney Stender: Friday Officer Maddix came
back to work here on O-Wing "second tier." And his first move follow-
ing his return was to make it a point to let us know he had returned,
and that he is virtually obsessed with vengeance for the "temporary
interruption of of his programs . . . ." [His] return comes as no sur-
prise to us as such a move is an official policy designed to make it
"Pell, The Soledad Seven: Attempted Murder in Monterey, in The Politics of
Punishment 213 (E. Wright ed. 1973). Details of this prosecution are taken from Pell's
account at 199-221 passim.
:12In February 1972 a new District Attorney in Monterey dropped charges against four
of the men without explanation. Charges against the remaining three prisoners were
dismissed in the midst of their trial when inmate witnesses for the prosecution confessed
to having invented their stories under coercion from prison officials.
658 MISSISSIPPI LAW JOURNAL [vol.45
appear to us and all inmates in general that complaints or any other
form of attempting to expose the illegal, wanton and savage acts of the
officials is but useless and a waste of time and in any event not worth
the deadly retaliation that is sure to be perpetrated against us for our
efforts. We would further like to point out that Officer Maddix's return
to 0- Wing has caused a devastating impact of fear and terror among
virtually the whole inmate population of O-Wing ourselves included
. . . Respectfully submitted.33
Within a week O Wing inmates launched a hunger strike
interracially, individually and collectively . . . [to] serve notice on
you that no longer will we allow you to manipulate us and exploit our
mutual suffering from the conditions imposed on us by your individual
and concerted efforts to dehumanize us and perpetrate against us every
crime conceivable to your distorted minds for your sadistic satisfac-
tions.31
Among their demands were pleas to end the practice of confining
"suspects" from other parts of the prison in 0 Wing indefinitely, to
expand visiting privileges for inmates under public indictment, to im-
prove the "dog food tuna" lunches and eliminate the inedible "special
isolation diet," to guarantee fair procedures in disciplinary hearings,
and to permit inmate Earl Satcher, in isolation, to rejoin his fellow
inmates on upper 0 Wing "whom he is properly able to function with,
rather than be transferred to X-Wing, where he doesn't feel comfortable
or secure. No inmate should be forced against his will."35 The strike
ended 2 weeks later; the only demand achieved was the addition of soup
to the lunch menu. One inmate wrote:
Outwardly and materially our food strike was a dismal failure, we only
gained a bowl of soup, but the harmony, unity, and greater understand-
ing that evolved between the races was a tremendous gain, but immedi-
ately after the strike, the staff no longer held inmate staff meetings,
certain porter positions and privileges were eliminated and the rumors
of pending racial clashes began to fly from certain keepers mouths.36
Securing any cooperation at all among the racial groups on 0 Wing
is an achievement that should not be passed over lightly. Its fervid
atmosphere is not conducive to building the trust upon which working
relationships are based. On 0 Wing even the slightest alteration of
!:iLetter from Tomas Meneweather to Fay Stender, October 23, 1970, on file at the
Prison Law Project, Berkeley, California.
"Affidavit of Deposition of Demands, November 1, 1970, in Maximum Security 152-
56.
"Id.
:i6Letter of O Wing Inmate, December 18, 1970, in Maximum Security 157.
1974] THE "CLOSING" OF 0 WING 659
gesture or tone can easily be interpreted as a sign of hostility or impend-
ing treachery. Minimal opportunities exist for potentially constructive
interactions, especially because the psychic impact of long months or
years of such confinement produces emotional instability bordering
upon, and sometimes crossing into, psychosis. In such circumstances
only the bravest and strongest men can risk the unusual acts of leader-
ship that transform emotional hostilities into political alliances.37
In the midst of the strike, prison officials suddenly transferred a
group of inmates from San Quentin to 0 Wing, presumably to "break"
the strike. Robert D. Harkins, a young white prisoner with a reputation
as an informer, was among this group. Within a day of his arrival,
Harkins was dead of stab wounds. Inmate medical assistants told Sole-
dad lawyers that the on-duty prison physician took 50 minutes to re-
spond to the call and then refused to perform the emergency surgery,
which was standard in such cases, to prevent Harkins from bleeding to
death.
Harkins' parents contended in a subsequent damage suit that their
son had been used "as a pawn" in an inmate-staff conflict. They argued
that prison officials should have known that a new arrival would be
subject to special pressure and special danger on 0 Wing, and they
accused Soledad authorities of negligence in failing to provide safe hous-
ing and adequate medical care for their son.38
Aggravated tensions approached the breaking point in early 1971.
O Wing officers undertook a campaign of harrassment which began by
withdrawing permission for inmates to keep hair oil and toothpaste and
cancelling exercise periods on alternate days for no apparent reason.
Inmates complained steadily of contaminated food and denials of pre-
scribed medication. Three outspoken inmates, two blacks and one
Mexican-American ,were accused of assaulting a guard and were put in
isolation cells without clothing or bedding. One of the three wrote that
he was "entangled in a situation of unknown proportions, not of my
making, beyond my controlled comprehension, just like a lamb, I await
37George Jackson wrote to an attorney investigating 0 Wing complaints for a possible
affirmative civil rights action in June 1970:
We have to fight, sometimes duels to the death, when the wrong doors get
opened on the wrong shower periods . . . the pig sets people up this way. They
put a little white guy on the tier with three of us by mistake today. I walked up
to him, shook his hand . . . pig was so enraged that no fighting or killing took
place, he screamed to me that I didn't have long to live.
Letter from George Jackson to Earl Hedemark, June 29, 1970, on file at the Prison Law
Project, Berkeley, California.
38Claim of Thomas D. Harkins, Sr. & Kathleen Harkins v. State of California, filed
with California Board of Control, February 11, 1971, copies on file at Prison Law Project,
Berkeley, California.
660 MISSISSIPPI LAW JOURNAL [vol.45
the slaughter. ":i!l
After being removed from the strip cells, the other two, Edward
Whiteside and Raymond Marquez, were denied their prescribed medi-
cation and were subjected to violent racial abuse. Their protests led to
repeated tear gassings of these inmates in their cells.40
Throughout February and March 1971 inmates alternated between
attempted discussion of their grievances with 0 Wing administrators
and acts of physical resistance. In February 1971 a delegation from the
Committee for Public Justice composed of Harvard psychiatrist Robert
Coles, author and playwright Lillian Hellman, former U.S. Assistant
Attorney General Roger Wilkins, and other prominent persons visited
Soledad. Dr. Frank Rundle, the Soledad staff psychiatrist who worked
against impossible odds to try to remedy the destructive effects of
lengthy confinement in the Adjustment Center, met the group and took
them on a tour of 0 Wing before prison officials could launch their more
tepid "open house" reception. An inmate described their visit as follows:
Well today the people came who you had told me about but the Pigs
knew about it a little too early because about 15 to 20 minutes before
the People and Dr. Rundle were here they turned our water on to try
and clean things up a little. But I feel they saw enough because all we
had in our rooms were one blanket and a sheet, legal paper and a few
other things . . . from the canteen. They saw boxes and boxes full of
garbage all along between our cells and us only in shorts and a tee shirt.
What's funny about it is that we have only had a mattress two whole
days since the first of February; one time when Dr. Rundle came to see
us, and that was given us about one hour before and then again on the
first few minutes of this visit . . . .4I
The prison, as usual, counterattacked successfully in the media.42
Accumulated provocations in 0 Wing seemed to have grown beyond
endurance, and many observers believed that "the slow burning fire of
resentment" would soon ignite a full-scale prison uprising. In mid-May
1971, a Program Administrator, Kenneth Conant, was stabbed to death
on the mainline. It was the prison's 10th death in 18 months. The entire
prison population was "locked up" while tighter security rules were
MSee Sworn Statement of Francisco Albarran Buelna, February 20, 1971, in Maximum
Security 166.
i0See Tear Gassings in March, 1971, Incidents Illustrative of Violence in Soledad's 0
Wing, Prison Law Project Report, reprinted in 1971 Hearings 273-79.
"Letter from Raymond Marquez to Fay Stender, February 22, 1971, in Maximum
Security 52-53.
42The San Francisco Chronicle's Tim Findley found the situation optimistic, and
admired the new program administrator Cal McEndree, calling him "progressive . . .
may even succeed in closing down at least half of the Adjustment Center within the next
year." San Francisco Chronicle, Feb. 24, 1971, at 18, cols. 5-6.
1974] THE "CLOSING" OF 0 WING 661
formulated. A new superintendent, Walter Stone, was brought in 1
month ahead of schedule to replace Fitzharris, who was to have left
Soledad in July for a corrections deputy directorship in Sacramento.
Within a week nearly 200 "potentially disruptive" inmates had been
singled out and transferred to other institutions.43
The Soledad Brothers were sent to the Adjustment Center at San
Quentin, as was Hugo Pinell. Other blacks on O Wing, including Earl
Satcher, Meneweather, Whiteside, and Madison Flowers, were shipped
to long term lock-up in Folsom's Adjustment Center. The most trouble-
some cases of mental disturbance went to the medical prison at Vaca-
ville. Many of the younger inmates were sent to Deuel Vocational Insti-
tution (DVI) at Tracy, California. A total of 400 prisoners was trans-
ferred by July 1. Such was the "closing" of 0 Wing at Soledad.
At this time, however, Procunier and other officials began to warn
that other institutions were showing signs of Soledad troubles. Procunier
was reported as being determined to "wrest control of conspiracy" from
convict groups and "outside manipulators."44
In November of 1973, after the stabbing of a guard at DVI, four
California prisons were completely locked-down, and remained so until
February 1974. A detailed description of the events, charges, and
counter-charges which ensued would only drearily repeat the foregoing
pages with only a slightly different set of characters, involving prisoners,
prison-staff, lawyers, and press. There is no purpose in detailing the
repetition of the 1970-71 events which occurred in 1973. Those of 1970-
71 were detailed at such length in order to provide a factual base for the
analysis which follows.
Before proceeding to an evaluation, it is important to note that as
tension at Soledad receded in the summer of 1971, officials' claims about
the extent of change at the prison greatly increased.45
Even as the Director of Corrections was taking pride in the pur-
ported closing of O Wing, approximately 35 Soledad inmates were being
,3Id. May 26, 1971, at 3, col. 1.
J4San Francisco Examiner, July 4, 1971, at 6, col. 1.
45"As of July 1971 the Adjustment Center is no longer in existence . . ." the new
superintendent Walter H. Stone told a British journalist, Simon Pleasance. "We have an
Administrative Segregation Unit on the first floor of O-Wing now." Letter from W. H.
Stone to Simon Pleasance, August 1971. Director Procunier explained the "cooling out"
of Soledad as an example of the Department's advanced penological theories. "As part of
the effort to find an answer to last resort lock-up" he wrote in a statement prepared for
the Hastings Law Journal, "we have already been able to close the once-bulging
maximum-security units at CTF Soledad." Unpublished manuscript submitted to
Hastings Law Journal September 1971. Procunier's prepared statement for the House
Hearings in October 1971 contains a paragraph on lock-up identical to the one in the
Hastings manuscript, except that the sentence just quoted has been deleted.
662 MISSISSIPPI LAW JOURNAL [vol. 45
detained there awaiting discipline or court trial for alleged in-prison
offenses. The Adjustment Center had become a "county jail" detention
center. Its essential routines ran on unchecked.
The sleight of hand performed over 0 Wing by the Department of
Corrections may have been prompted by the legislative struggle waged
throughout the summer of 1970 over the Dymally-Dunlap bill to regu-
late prison adjustment centers. Introduce by State Senator Dymally
and Assemblyman John Dunlap, the bill restricted the practice of ad-
justment center confinement to the punishment of violent acts of mis-
conduct only and provided basic procedural safeguards before such an
assignment could be made. Under the bill an inmate could be placed in
isolation only after approval by a prison hearing board that would in-
clude two prison staff representatives, an inmate observer, and a psychi-
atrist. The bill also provided that no prisoner could be held in an adjust-
ment center for more than 30 days without a Superior Court hearing. It
also outlawed most of the physical deprivations routinely practiced on
0 Wing and specified that adjustment centers should not be used for
the confinement of persons having symptoms of major mental illness.46
The bill passed the Assembly, 42 to 32, on July 30, 1971, cleared
the Senate Judiciary Committee in August, but was defeated in the
Senate Finance Committee on a close vote during the final days of the
legislative session. To counter the intensive support being mobilized for
the bill by groups of prison lawyers, psychiatrists, social workers, and
ex-prison organizations and others, the Department of Corrections
argued that it had already met many of the bill's objectives — by reduc-
ing "lock-up", "closing" maximum security units, etc. After the August
1971 incident at San Quentin, however, in which three guards and three
prisoners including George Jackson were killed, the Department
changed its emphasis by arguing that the provisions of the bill would
restrict Corrections' ability to deal effectively with agitators and emer-
gency situations.
The campaign against adjustment center lock-up did not greatly
ameliorate life in 0 Wing. For a brief time, public pressure did call forth
a moderating response from Corrections officials. Yet the changes at
Soledad, the removal of Cletus Fitzharris, the closing of X Wing, the
inmate transfers, and the reclassification of 0 Wing, were but quickly
applied symptomatic relief for the sickness of state-induced violence
that grew beyond official ability to manipulate it. With Soledad sim-
mering down, the heat shifting to San Quentin, the Adjustment Center
Bill defeated, and legislative pressure relaxed, conditions on 0 Wing —
invisibly and inevitably — deteriorated once more.
,nA copy of the proposed Dymally-Dunlap Adjustment Center Bill, A.B. 2904, S.B.
1610 is reprinted in 1971 Hearings 303.
1974] THE "CLOSING" OF 0 WING 663
In early 1973 a unified group of Chicano inmates were the center of
attention in 0 Wing. On February 1, 1973 a petition signed by 30 0
Wing inmates was sent out requesting Attorney Fay Stender to "see
about investigation here" and to "represent us . . . and make sure that
all about Soledad Prison 0 Wing is brought out and not covered up like
always."17
The petition recites a litany of charges no less compelling for their
repetitious familiarity:
We the undersign have been the subject of cruel and unusual punish-
ment, undue harrassment on the part of the administration and prison
officers as well as mental pressure inflicted on our family and friends
and on us, lack of warm and proper food, no proper medical attention,
no heating much of the time, the confiscation of personal property, the
denial of visiting privileges with our family and friends in the general
visiting room on the basis of bogus disciplinary reports and filling our
files with bogus charges to fit into the organizational stereotyping cate-
gories that C.D.C. has that does not help us convicts but condemns us
and keep us behind concrete and steel, plus putting our lives in jeop-
ardy, so as to get us killed or have great bodily harm inflicted on us,
using us convicts as examples, when the newspapers and public hears
of strikes or killings in "Soledad Prison" by giving us bogus disciplinary
reports finding us guilty ... so as to take public pressure off the
administration and officers ... all we ask is to be treated as human
beings . . . .4X
Today four prisons in California, Soledad, DVI, San Quentin, and
Folsom, essentially constitute giant 0 wings. 0 Wing has in fact become
the prison itself.
II. Why O Wing Has Expanded: Implications For Prison Reformers
As 0 Wing filled up again in 1973 and X Wing reopened, the De-
partment of Corrections sought increased funding from the legislature
to plan and build new maximum security prisons in California. Despite
public awareness, widely publicized trials involving prisoners, and other
forms of political education, lock-up stood in little danger of being lim-
ited. The staying power of the prison bureaucracy was not matched by
the reformers, and the organized campaign to dramatize the situation
on O Wing in 1970-71 did not again materialize, either in early or late
1973 when lock-up took over all the northern California prisons. Two or
three lawsuits were begun by groups new to prison litigation, and their
47Petition sent to Fay Stender from 0 Wing Inmates, February 1, 1973, on file at the
Prison Law Project, Berkeley, California.
"Id.
664 MISSISSIPPI LAW JOURNAL [vol.45
success can not be predicted at this time. Lawyers from Public Advo-
cates in San Francisco and the public defender's office in Marin County
are now challenging aspects of lock-up in the federal courts.49
The 1970-71 effort had grown largely from the efforts of a relatively
small number of people already brought together by the Soledad Broth-
ers defense work. Spurred on by the energy and inspiration of George
Jackson, capital defendant, powerful writer, and prison organizer of
blacks, whites, and Chicanos, this group found some encouragement in
the initial response of several liberal groups and investigations and was
working with the momentum of a major political case.
By 1973 George Jackson was dead, the Soledad defense team scat-
tered, the Prison Law Project — a group of lawyers and legal workers
which had provided full-time legal services to prisoners — faced immi-
nent closing for lack of funds,50 and the few remaining sources of legal
aid did not have the resources to take on anything but the most pressing
individual cases.
Whatever limited restraint upon the administration of 0 Wing the
1970-71 effort had achieved no longer operated in 1973. No longer was
there any reason for prison officials to make limited improvements in
fear of massive reinvasion of 0 Wing by legal observors, investigating
committees, the U.S. Civil Rights Commission, the Committee for Pub-
lic Justice, reporters from the New York Times or Washington Post, or
black or Chicano legislative caucuses.
The Soledad campaign did help to create a broader and more dif-
fuse community of concern about prisons which, while unable to prevent
the reversion of 0 Wing, did manage, in the spring of 1973 to stop
passage of a million dollar state appropriation for the planning of new
maximum security facilities. Reform forces also initiated a class action
lawsuit which succeeded in obtaining 4 hours of outside recreation per
day for prisoners in Folsom Prison's 4-A Adjustment Center.51 They were
unable, however, to obtain either that same "privilege" or three meals
a day, rather than two, at San Quentin's Adjustment Center, where the
prisoners who shared life in 0 Wing with George Jackson in 1970 re-
mained incarcerated, some still confined there even after dismissal of
49See Gonzalo v. Procunier, Civ. No. C-73-1422 SAW (N.D. Cal. filed December 27,
1973) (Petitioners' motion for appointment of Special Master pending). Counsel include
private counsel and attorneys for Mexican-American Legal Defense and Educational
Fund, NAACP Legal Defense & Educational Fund, and the Legal Aid Society of Sacra-
mento County.
r,0The Prison Law Project did close, except for completion of its pending cases and
referral services, on June 30, 1973.
5»See Carter v. Craven, Civ. No. S-2388 (CD. Cal. filed March 6, 1972) (Pending on
defendants' motion for summary judgment filed February 15, 1973).
1974] THE "CLOSING" OF 0 WING 665
the indictment charging them with participation in the events surround-
ing Jackson's and the guards' deaths.52
With greatly reduced accessibility of funds, the prison lawyers who
had organized the Soledad campaign, taken some of the additional Sole-
dad cases themselves, and secured other private counsel for the trials
of the Soledad prisoners charged with assault and murder of guards in
1970-71, were unable to do much in assistance of the prisoners charged
with assault and murder of fellow prisoners at Soledad in 1973. Even if
such attacks, whether on guards or prisoners, are understood to be a
response to the frustration, deprivations and terror of prison life, it is
nevertheless worth noting that in 1970 these lethal assaults were be-
tween prisoners and guards, and in 1973 they appeared to return to the
pre- 1970 pattern of being between prisoners themselves (excepting the
November 1973 incident at DVI). Again it is worth noting that the
deaths of dozens of prisoners did not result in the increase of security
measures as did the death of one guard in the DVI incident.
A note allegedly found beside Officer John Mills' dead body at
Soledad on January 16, 1970 to the effect of "one down, two to go" was
widely publicized, and then all mention of it stopped, and it was never
produced despite a demand for it by the defense in the Soledad case.
After the three black prisoners were killed in the O Wing exercise yard,
three prison officials were killed at Soledad within the next 18 months,
and several prison guards were assaulted in O Wing in the few months
immediately after those prisoners' deaths. It will of course never be
known if these incidents would have occurred at all had the persons
r,2An historical and precedent-making order was entered in this prosecution, against
six inmates and attorney Stephen Bingham, by Judge Vernon Stoll, a retired judge sitting
by appointment on the motion to dismiss the indictment (for murder, conspiracy, assault,
and other serious charges) on grounds of unconstitutional selection and composition of the
grand jury which indicted the defendants. Granting the motion to quash the indictment
against the prisoner defendants, in an Order filed January 17, 1974, in People v. Bingham,
No. 4094, Superior Court of the State of California in and for the County of Marin, Judge
Stoll found that representatives from identifiable groups of which defendant prisoners
were members were systematically excluded from the Grand Jury. The defendants urged
that the "identifiable groups" within which various of them fell were: the blacks, the low
wage blue collar class, the Chicanos or Latinos, and ex-convicts, and convicts. To the
writer's knowledge, this is the first instance of a trial court granting such a motion in the
United States. Prisoners have again contributed to general law; the defendants, however,
remain in the Adjustment Center under conditions similar to those described in Jordan
v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966). The court found that the moving defen-
dants (the prisoners) belonged to groups to which the means used by the grand jury
selectors did not assure fair representation: "to wit, The Blacks, the Latin Americans, the
blue collar working class and the young in the pool from which the Grand Jury was
selected." The court noted both that Bingham had not joined in the motion, and that
there was no evidence as to him belonging to "any identifiable group." The state has
appealed the ruling.
666 MISSISSIPPI LAW JOURNAL [vol. 45
responsible for the deaths of the black prisoners been charged, or even
investigated, by the processes of the law. It is submitted that the entire
cycle of terror, death, and violence which began in California's prisons
in January 1970 might never have started or reached the proportions it
has if evenhanded justice had been applied to the investigation of the
deaths of the three prisoners shot from the tower of Soledad's 0 Wing
yard on January 13, 1970.
With the diminished public interest after the original dramatic
events had ceased, the prisoners at Soledad and other California prisons
turned more to their own internal organizations for protection and soli-
darity. This move, a conscious extension of longstanding survival de-
vices in the prison culture, was a realistic response to the indubitable
truth that the reformers live outside and are free to abandon the cause,
while the prisoners remain inside.
Prisoner organization appeared to provide the only promising in-
strument for the continuing expression of inmate needs. Yet these or-
ganizations had the fatal weakness of existing on the basis of adminis-
trative sufferance. Officials were able not only to turn one racial group
against another, but to manipulate, through favors and their subsequent
withdrawal, tensions between two organizations within the same ethnic
group. This process enflamed tensions among the two leading Chicano
organizations at Soledad in early 1973 and appeared to have spread
throughout the entire California system by late 1973.
The repetitive cycle in Soledad's O Wing must call into question
the efficacy of the reform techniques mobilized in 1970-71. It appears
that the ambitious 1970-71 campaign had one major, continuing benefit:
the liberation of an authentic prison voice expressing its grievances and
its political vision. In addition, the public attention thus drawn to Sole-
dad helped to obtain favorable verdicts in the several court cases and
thus prevented outspoken, activist prisoners, most of whom were black
or brown, from receiving additional and consecutive life sentences.
Yet the resources consumed by these court battles reduced the
amount of energy available to undertake civil lawsuits attacking prison
conditions generally, or to maintain a sustained educational effort in the
state legislature.
The larger and more painful truth, however, is that the array of
methods used to publicize 0 and X Wings is inadequate, both in the
context and beyond the defense of the Soledad Brothers, as a means of
dealing with what must be seen as the inexorable and inevitable condi-
tions revealed in the 1970-73 history of O Wing.
These methods are insufficient partly because publicity has an in-
constant quality. Press coverage can be gained for the defense of a
charismatic figure like George Jackson but cannot be maintained for a
set of conditions that shape the lives of anonymous convicts. Groups of
1974] THE "CLOSING" OF 0 WING 667
authors, psychiatrists, social reformers, and prominent politicians may
still be persuaded to undertake investigations, call press conferences, or
lend their support to fundraising activities, but it becomes increasingly
more difficult to gain media attention for what is, after all, a repetitious
story, unless novelty is provided by increasing the stature of each new
group of mobilized celebrities. The quest for publicity all too readily
becomes a diversionary activity, and in the process a fundamental truth
is obscured: publicity itself is a false goal, except as an opening wedge
which quickly must be supplemented with more powerfully sustained
efforts of varying kinds.
Economic, social, and psychological interests are served by the
prison system's present arrangements, and it is at best ingenuous to
believe that simply making certain attributes of that system more visi-
ble will force changes in it. Truth, in modern America, yields few light-
ning bolts. In retrospect, however, it is understandable that publicity
assumed its great significance for opponents of O Wing. Conditions
there did indeed violate "elemental concepts of decency," and it was
perhaps natural to assume, at first, that brutality on 0 Wing was a dark
aberration which could be abolished once the fact of it became widely
known.
In publicizing occasions of gross maltreatment, therefore, Soledad
prison's critics certainly hoped that such horror stories might galvanize
public officials into taking remedial actions that would ultimately do
away with lock-up as a major penological tool. As with other forms of
shock treatment, however, this one had some unanticipated effects.
Debilitating arguments ensued about the factual basis for the alle-
gations, and these disputes took attention away from the essential issue
that it is the brute fact of locking men up in cages and not instances of
maltreatment during any given moment of confinement which violates
the "primal rules of a civilized community."
It is obscurantism masquerading as empiricism that forces debate
on such questions as whether contaminated food was possibly served on
one date and not on another; or whether the denial of X-rays was inad-
vertent, ignorant, or malicious. Casting the issue in such a way leads
directly to what might be termed the "investigative trap" of having
endlessly to organize new proofs, new teams of prestigious individuals
who could report that they had seen "for themselves" that reports of
inhumanity and brutality were true. Publicity thus becomes turned on
itself, and the reformers in the end are forced into publicizing not the
conditions, but the credibility of the reformers' and others' observations
of them.
When representatives of the Black Caucus visited Soledad, Procu-
nier maintained that what they had seen and heard was "beyond be-
lief." Yet in response to a request that he explain the persistence of
668 MISSISSIPPI LAW JOURNAL [vol.45
atrocity stories, he averred that "y°u either have faith in the system or
you don't/' In the end, therefore, credulity is in the eye of the beholder.
Moreover, falling into the investigative trap demonstrates the my-
opia induced by class barriers. By virtue of their station, prisoners are
deemed untrustworthy, and so their accounts of their own experience in
prison are generally not credited unless confirmed by some reliable out-
sider. But no outsider's view of prison life will be considered reliable by
prison officials who continue, with only very are exceptions, to monopo-
lize the media.
Three years of effort by prison reformers and activists directed spe-
cifically at the news media with explicit urgings that they not take
administrators' words at face value produced little questioning as to
whether the authorities' pronouncements were accurate or complete.
The prisoners remained generally invisible, whether in 0 or X Wings or
mainline, except as described by prison administrators, unless the num-
bers of suicides or a large-scale riot received public note.
The effort to publicize in 1970 what had previously been invisible
was an attempt to elicit emotional responses based upon shock and
outrage without offering an analytic perspective which would clarify the
possibilities of change. The reformers did not then understand the rela-
tionship of O Wing and the Adjustment Center to the prison system.
Why had 0 Wing existed for many years prior to 1970 and why does it
exist, unchanged in all essential respects, today? It is difficult to lay
bare the dynamics creating O Wing; access to the complete truth is
barred by the secrecy with which administrators surround lock-ups. and
also by the privileged communications between prisoners and their at-
torneys. In its role as a symbol of maximum security lock-up 0 Wing is
at once an expression of the desire and need of the public to punish and
cripple the convicted defendant as well as a response of prison adminis-
trators to the problems of maintaining order in the prison, an institution
in which no one wants to live and where the ordinary frustrations of
mainline life are severe, even to men™ with extraordinary impulse
control. Yet most of the men in prison only partially understand the
totality of forces, internal and external, which brought them there.
Under the indeterminate sentence in California, a prisoner does not
'■'The term "men" is used advisedly in this context; because although women are
sometimes locked up, the long-term Adjustment Center confinement has not character-
ized treatment of women felons in California (with the possible exception of three or four
prisoners). Observers view with alarm the proposed construction of a new maximum
facility for women in California and the possible onset of a new harshness in the overall
prison treatment of women in general. The special issues of emphasis on "behavior modifi-
cation" and "intensive treatment units" in the women's prison in California and the close
custody connected thereto, are beyond the scope of this article. See K. Burkhardt, Women
in Prison (1973).
1974] THE ^CLOSING" OF 0 WING 669
know when, if ever, he will be released. And this in itself breeds an
uncertainty similar to and at times consisting of true terror.
An indeterminacy so lengthy; e.g. , 1 year to life, or even 6 months
to 15 years, has aspects of destruction of the juridical body. This de-
struction has been compared to the breakdown in Germany which lead
to the torture and murder of concentration camp prisoners in Nazi Ger-
many.54 The use of terror and other devices as a feature of American
prisons and Nazi camps is a long-neglected study which might well be
undertaken in law schools and research institutes.
In California, and probably elsewhere as well, inmates must con-
struct a complex of hypocritical attitudes to present to the Adult Au-
thority (i.e., parole board) before they can entertain any hope of getting
out. A perfect written record must be achieved. This means no discipli-
nary write-ups, perfect work attendance, and suppression of hostile atti-
tudes toward guards. Submission to total control and acceptance of
near-total deprivation must be manifested at all times. This must take
place while the prisoner deals with a set of deep anxieties: fear of aban-
donment by his family, loneliness, fear of physical attack, or fear of
seeing a crime, such as an assault on a guard or other in-prison offense,
and being forced to testify against another prisoner with a possibility of
retaliation.
The physical setting exacerbates these fears; it is crowded, contin-
ually noisy, inadequately heated and illuminated, and medical care
varies from slipshod to grossly negligent. Assertion of a rebellious, cyni-
cal, or radical political view means additional years in prison. To control
such a population, it is absolutely essential for the authorities to hold
out the threat of a confinement so much worse that men will conform
to all that is expected of them on mainline.
An O Wing may or may not be essential to achieving the purposes
which society consciously expects and requires of its prisons, but an O
Wing is central and essential to the operation and control of today's
prisons given the conditions outlined above. Men get into O Wing for
several different reasons. Some are overtly psychotic and cannot, in the
most minimal sense, control their behavior on mainline. They assault
others or break rules by being in the wrong place at the wrong time, or
destroy property, etc. Some knowingly break some prison rule by gam-
bling, borrowing money, making home brew, failing to work, assaulting
a prisoner or guard, or attempting escape. Some express political beliefs
and attempt to organize prisoners into unions, or into other groups to
assert rights or interests. Some are aggressively homosexual. Some are
passively homosexual and unable to defend themselves. Some have been
54H. Arenot, The Origins of Totalitarianism (1951). See particularly the discussion
of totalitarianism in power at 404, 420 and passim.
670 MISSISSIPPI LAW JOURNAL [vol. 45
convicted of crimes (Sirhan Sirhan or Charles Manson for example)
which are believed to warrant a high degree of security against possibil-
ity of attack by other prisoners, or punishment, for the offender.
Some are placed in O Wings in an administrative attempt to deter-
mine responsibility for an event such as an assault or a narcotics smug-
gling ring. By this common technique, the authorities hope to force
confessions or get information through the pressures created by lock-up.
Some inmates will not cut their hair, or refuse to conform to some newly
imposed rule, thus suddenly striking a spark of defiance in a previously
conforming prisoner. Some respond to provocations which have not pre-
viously led them to rule breaking or defiance. A racial insult, once qui-
etly borne, now inspires a hot reply. Some prisoners on mainline have a
sense of outraged justice and righteousness, which usually leads to ex-
pressions of attitudes and behavior bringing them to 0 Wings.
Since few if any want to be on mainline (i.e., in prison at all). 0
Wing is necessary to remind them of how terrible life will be if they do
not conform to all requirements of mainline. It is the coercion of a life
worse than that on mainline which compels human beings to endure
mainline. Even with life in O Wing so devastatingly destructive, many
people end up there. Out of approximately 22,000 male prisoners in
California's penitentiaries, there are presently some 800 plus "long-
term" lock-up prisoners in California's Adjustment Centers. Daily, more
are being so classified.
Many prisoners arrive in O Wings as the result of a momentary loss
of control, and once there, the breaking point is often reached on the 90-
day initial stay, and the prisoner loses what self-control he previously
had. He must demonstrate a "good attitude" to get out of O WTing. but
often this is beyond him since he is "written up" every day and watched
constantly.
The O Wing populations demonstrate a wide variety of human
qualities, none of which is considered favorably by the authorities. The
prisoners show a great need for emotional rapport and sustenance, and
they place great emphasis on love and personal loyalty. They often show
intense political and philosophical concentration. Many need to feel
that they are serving a great and just cause; they need to give and
receive love. Many manifest intense concern for "purity," demonstrate
poetical and emotional ways of self-expression, and concentrate deeply
on matters of pride, love, loyalty, and politics.
Many weaknesses are engendered and exaggerated by O Wing expe-
riences; paranoia, lack of judgment, lack of sense of proportion, jeal-
ousy, touchy and overly hot senses of honor and betrayal, and low boil-
ing points of rage all characterize prisoners in lock-up at various times.
Few avoid some of these traits under those conditions.
The deteriorating behavior of many inmates under the pressures of
1974] THE "CLOSING" OF 0 WING 671
0 Wing life and the militant revolutionary posture of others permits the
prison administration to explain their continuation of O Wing practices
as necessary for prison security on the few occasions when justification
is required.
The terrible message of 0 Wing comes daily to the mainline pris-
oner struggling to find political expression. If it is necessary to have an
O Wing to ensure a secure level of inmate conformity on mainline, one
may ask if a similar coercion is necessary in the outside world to keep
persons working at menial jobs or passively accepting the life which
accompanies welfare and unemployment. Just as slavery or imperialism
have provided solutions for some vexing problems in our society, so do
prisons and their inevitable O Wings, albeit at a high price.
Exposure of the conditions in O Wing brought certain demands for
change through the judiciary, the legislature, the media, and the in-
creasingly well-organized ex-prisoner organizations. To the extent that
O Wing and Soledad are anachronisms, persisting into a time when
shocking and inhumane treatment of prisoners serves no deep or ongoing
purpose of society, the demands and the movement for change hopefully
will succeed in the foreseeable future. To the extent that such conditions
and treatment are essential to the present purposes of our society, little
if any change should be expected.
The preliminary signs are not optimistic as the Soledad effort of
1970-71 and the larger prison reform movement in California of 1971-73
are reviewed.
Although inadequacies of vision, personnel, analysis, and also inex-
perience in politics may explain the failure in both instances, this type
of explanation for the failure to limit or restrict lock-up will be tested
when the results of a third such effort are assessed. Consisting of a more
broadly based alliance of prisoner and ex-prisoner organizations, more
prestigious lawyers and reform groups, and a smattering of educated
public and legislators, some current efforts at reform are now underway
in California. It is far too early to evaluate these efforts, but they arise
at a time when the media is extremely unfavorable toward prisoners and
almost half of California's prison population is under some form of lock-
up.
Since so much is hidden in prisons, and since the press often prints
at face value the statements of the prison authorities, analysis of all
efforts at prison change and of the prison situation itself must include
the details of life as perceived by the prisoners. If self-congratulatory
literature or ringing phrases from court orders or reform bills are relied
upon to convince ourselves that change has occurred, there is little point
in becoming concerned or involved with the problem at all. The lawless-
ness of corrections and the belief that it is beyond the law are outside
672 MISSISSIPPI LAW JOURNAL [vol. 45
the scope of this article/'5 but a substantial portion of this lawlessness
consists of deliberate failure to implement court orders.56
This lawlessness contributes to the terror of prison existence and
permits prisons to serve deeper psychological functions for society than
are generally perceived. The lawlessness of prisons is intimately related
to the total lock-up which O Wing epitomizes. Not accidentally or coin-
cidentally, while prisons generally have a higher nonwhite population
than the general society, O Wing and lock-ups in California and else-
where have a higher nonwhite population than that of mainline.57
That familiar trio, terror, lawlessness, and race, again surface in 0
Wing and in California's locked-down prisons, and a closing of O Wing
in the near future is unlikely. The question to which lawyers and others
seeking to understand 0 Wing must address themselves is both hard to
find and hard to confront. But surely we must assume that these horrors
serve more than a passing purpose, since they seem so resistant to
change. When the purpose can be described and understood, strategies
for change will have more meaning, and can be more appropriately
designed.58
"See Greenberg & Stender, The Prison as a Lawless Agency, 21 Buffalo L. Rev. 799
(1972).
56See paper on enforcement, implementation, and monitoring of court orders in prison
cases, prepared by Linda Singer of the Center for Correctional Justice, Washington, D.C.
for the Conference on Corrections, January 30-31, 1974 at the Academy for Contemporary
Problems (Battelle Institute), Columbus, Ohio. The papers given at this conference are
in preparation for publication by the Academy.
"See Complaint in Carter v. Craven, Civ. S-2388 (CD. Cal., filed Mar. 6, 1972).
58This article has not taken up the myriad of cases recently decided and now pending
dealing with conditions in prison and "due process" litigation, seeking to bring due process
safeguards and procedural standards into the prison-parole process. Numerous law review
articles and some textbooks are now available discussing the prison litigation explosion
of the last decade. An excellent discussion of the inhospitability of the California state
courts to prison litigation may be found in Bergesen, California Prisoners: Rights Without
Remedies, 25 Stan. L. Rev. 1 (1973).
Since the standards by which the constitutional prohibition against "cruel and unu-
sual punishment" is measured are no less than "the evolving standards of decency of a
maturing society," Trop v. Dulles, 356 U.S. 86, 100-01 (1958), it is appropriate to investi-
gate and attempt to understand those standards before undertaking an analysis or explan-
ation of why prisoners' lives and conditions remain as bad or worse than before the recent
spate of litigation. It may well be that the immediate period is the dark before the dawn.
The author in no way means to discourage litigation. However, it is submitted that
litigation alone, without a more intensive analysis of the phenomenon of prisons, prison-
ers, and keepers in our society, is not likely to bring about real change.
The author has previously suggested that the political question inherent in the prison
problem might be phrased as follows:
How can those desiring it change an institutional practice which:
1) generates profit for drug and other medical companies;
2) provides economic and life-time job security for a bureaucracy which from
1974] THE ''CLOSING" OF 0 WING 673
top to bottom would have difficulty holding or competing for other jobs in other
areas in American life;
3) superficially (at the moment of sentence) solves the problems of crime in the
street and of the need for punishing those who cannot survive in our competitive,
technologically fearful society — at the same time pretending to help them and
removing them from the immediacy of our senses and consciousness;
4) permits "law and order" politicians to run for and win office on the "issue"
of crime and its control, and further to command hundreds of millions of dollars
in "research" and "improved law enforcement" funds, with the patronage and
empire-building inherent in these ever-increasing fundings;
5) hurts and cripples a non-voting, poor, and heavily non-white population?
Stender, Book Review of J. Mitford, Kind and Usual Punishment: The Prison Business,
The Conspiracy, Nov. 1973, at 6. (Publication of the Regional Office of the San Francisco
Bay Area National Lawyers Guild).
PSYCHIATRY IN CORRECTIONS:
A VIEWPOINT
Charles E. Smith, M.D.*
The role of psychiatry in corrections continues to be highly contro-
versial.1 While psychiatrists and some of their medical colleagues debate
the proper place of psychiatry in medicine and society,2 correctional
administrators ponder the extent to which they can usefully employ
psychiatric expertise in the conduct of their programs. Although some
authorities have expressed the opinion that psychiatry can make impor-
tant contributions to correctional treatment programs, the current in-
volvement of psychiatry in corrections is very limited; its potential has
yet to be effectively demonstrated.
A mid-nineteenth century North Carolina State Legislative Com-
mittee Report3 provides an interesting perspective on the physician's
role in the prisons. In defining the prison physician's responsibilities,
this document states, "He shall make strict examination into the men-
tal condition of every prisoner, and if he finds that the discipline or
confinement of the prison or any other appreciable cause accounts for
any prejudicial influence on the mind that he may discover, he shall
order such change as he may deem best."4
It is apparent that the authors of this proposal were quite farsighted
in their perceptions of the basic requirements for preventive mental
health services for imprisoned offenders. It is doubtful, however, that
any physician or psychiatrist employed by any prison system has ever
been delegated the responsibility for such a program or the authority to
carry it to completion. Furthermore, it is not likely that any single
physician or psychiatrist could fulfill these responsibilities, even were he
given the authority to do so. Nevertheless, most contemporary correc-
tional programs appear to follow the model suggested in this early report
in that they seem to take literally the suggestion that a single physician
can provide all necessary services, without reference to the numbers of
persons to be served, and the extent of health care needs to be fulfilled.
This model of medical care should be discarded and replaced with
health care programs which are capable of responding constructively to
both the emergent and long term needs of the imprisoned persons.
Unfortunately, one finds little on the contemporary scene to sup-
*A.B. 1939, George Washington University; M.D. 1941 George Washington Univer-
sity; Professor of Psychiatry, University of North Carolina Medical School.
'Smith, A Contemporary View of Psychiatry in Correction, 25 Fed. Prob. 16-17 (1961).
2Editorial, "Quo Vadis, Psychiatry?", 226 J.A.M.A. 464 (1973).
:,Report of Senate Comm. to Investigative Affairs of Penitentiary, Doc. No. 27,
Sess. 1869-70, Gen. Assembly of N.C.
'Id. at 7-8.
675
676 MISSISSIPPI LAW JOURNAL [vol. 45
port the development of expanded comprehensive health services for
prisons. The 1966 edition of the American Correctional Association's
Manual of Correctional Standards5 contains a chapter in which objec-
tives and standards for health and medical services in penal institutions
are suggested. In discussing staff allocation this document states:
The basic medical staff for a penal institution of approximately 500
inmates should include the following: one full-time chief medical offi-
cer, one full-time psychiatrist, serving as assistant medical officer, one
full-time dental officer, one full-time psychologist, five full-time medi-
cal technicians — and a suitable complement of consultants in the var-
ious medical and surgical specialties.6
An additional medical officer and medical technician is recommended
for every additional 500 to 1,000 inmates. While most medical authori-
ties would endorse these standards, very few of the 230 adult correc-
tional institutions in the country have health services which come any-
where near meeting these minimum requirements.
In 1967, the Task Force on Corrections of the President's Commis-
sion on Law Enforcement and the Administration of Justice published
its 222-page report,7 which makes no mention of either psychiatry or
mental health services. Under a heading titled, "Treatment Services."
there appears the statement, "Medical personnel, for example, are im-
portant."8 This report goes on to note the shortage of "clinically trained
persons" and suggests the advantages of "group methods" and "thera-
peutic community programs."9
In 1969, the Staff Report of the Joint Commission on Correctional
Manpower and Training10 questioned the usefulness of a "psychiatri-
cally oriented clinical model in the approach to evaluating and treating
offenders."" This report also stated that "many of the other concepts
of mental health, such as emotional immaturity, character disorder,
sociopathy, and so on, were exceedingly slippery handles by which to
open doors to successful correctional methods."12 The authors of this
report would further diminish the need for psychiatry in correctional
institutions by diverting various classes of mentally ill offenders out of
"Health and Medical Services, in Am. Correctional Ass'n, Manual of Correctional
Standards 436 (3d ed. 1966).
"Id. at 439.
'President's Comm'n on Law Enforcement and Administration of Justice. Report
of Task Force on Corrections 50 (1967).
"Id. at 51.
"Id. at 52.
'"Staff Report of Joint Comm'n on Correctional Manpower and Training 69 (1969).
"Id. at 71.
VLId. at 39.
1974] PSYCHIATRY IN CORRECTIONS 677
prisons into other treatment facilities, which are not specifically identi-
fied.
The 1973 report of the Task Force on Corrections of the National
Advisory Committee on Criminal Justice Standards and Goals13 also
recommended diversion of certain mentally ill offenders to "mental
health facilities." This report, however, recommends that correctional
agencies provide psychiatric treatment for "emotionally disturbed of-
fenders," certain drug abusers, and so called "recalcitrant offenders."14
The foregoing statements are illustrative of the lack of a consistent
policy regarding the place of psychiatry and mental health services in
corrections. Most observers would agree that the present overall in-
volvement of psychiatry in corrections is very limited, and rather tenta-
tive in its conceptual design. At last count, only 26 of the 230 adult
correctional institutions in this country could be identified as having
specific treatment programs for mentally disordered offenders.15 With
few exceptions, each of these treatment programs had the services of
only one full-time psychiatrist and perhaps one or two more working
part-time. It is no surprise that the combined efforts of this small
number of practitioners in a relatively few small, widely dispersed, and
essentially unrelated programs has failed to have any substantial im-
pact on major correctional problems such as recidivism, or even the
narrower problem of providing effective treatment for emotionally disor-
dered and mentally ill offenders.
If the place of psychiatry in corrections is in question, it can also
be stated that the place of corrections in society is also unclear. As with
many social welfare issues today, there is a remarkable polarization of
viewpoints regarding the treatment of offenders. At one pole there is the
philosophy of individualized treatment marked by humanistic and com-
passionate concerns. At the other end of the spectrum, there are propos-
als marked by coercion and repression based upon the ancient, but
nevertheless popular theory, that certain and swift punishment will
serve the best interests of control, deterrence, and correction.
Advocates of individualized treatment recommend expanded use of
community treatment resources under the auspices of parole and proba-
tion with less use of institutional confinement. They propose that cer-
tain classes of offenders be diverted from the criminal justice system to
other social or medical agencies. Among those who could be selected for
''National Advisory Comm'n on Criminal Justice Standards and Goals, Report on
Corrections 373 (1973).
uId. at 375-76.
I5W. Eckerman, A Nationwide Survey of Mental Health and Correctional Institu-
tions Providing Comprehensive Care for Adult Mentally Disordered Offenders 13
(1970).
678 MISSISSIPPI LAW JOURNAL [vol. 45
alternative treatment are the perpetrators of so called "victimless
crimes'' such as some drug and alcohol abusers, prostitutes, gamblers,
vagrants, and certain adult homosexual offenders.1" To assist in making
these determinations it has been recommended that increased use of
pre-sentence diagnostic study programs be made, and finally, that simi-
lar diagnostic resources be employed as an adjunct to the judicial deter-
mination of dangerousness, with the burden of proving dangerousness
placed upon the prosecution.
At the opposite pole there are proposals for the continuation of the
death penalty along with mandatory minimum sentences for certain
classes of offenses, and the elimination of the insanity defense to make
sure that no one "escapes" punishment. Also, increased use of plea-
bargaining is recommended in order to expedite the work of the court
in meting out sentences. Finally, some proponents of these procedures
also recommend "preventive detention" of individuals who may be
administratively determined to be dangerous in hearings which place
the burden of proving non-dangerousness upon the accused.17
It is apparent that there are many ways in which these two sets of
proposals are essentially incompatible one with the other. This being the
case, it is clear that the future of individualized treatment lies in the
balance, its fate awaiting the dictates of public policy. In a democratic
society, one hopes that public policy will be shaped by both humanistic
and practical concerns, rather than by a philosophy which allows de-
sired ends to be compromised by available means.
While it is generally agreed that the successful attainment of desir-
able institutional goals requires public support and social approval, it
is only in recent years that constructive efforts have been made to
achieve these necessary ends. We no longer expect the public to influ-
ence the conduct of institutional programs on their own initiative. In-
stead, we now endeavor to inform the public as to what they should
expect of institutions, in the hope that they will eventually demand the
same. In the meantime, prison administrators do not have the where-
withall to implement desirable program innovations, including psychi-
atric services, and many take refuge in the rationalization that they
could not purchase such programs even if they had the funds because
of the dearth of available personnel and related resources. Unfortun-
ately, no one can seriously question this assumption as long as funds are.
in fact, not available, though one might well speculate over the possibil-
ity that personnel could be found if the commitment to employ them
were more real than hypothetical.
"Crimes without Victims — A Policy Statement, 17 Crime and Delinquency 58 (1971).
l7Smith, Recognizing and Sentencing the Exceptional and Dangerous Offender, 35
Fed. Prob. 8-10 (1971).
1974] PSYCHIATRY IN CORRECTIONS 679
Meanwhile, a small but vocal group of psychiatrists continues to
challenge penal administrators and other influential persons to obtain
financial support for a variety of psychiatrically oriented intervention
programs, some of which would involve wider applications of individual-
ized treatment, and most of which can be viewed as desirable additions
to correctional systems. A few others actively espouse the cause of prison
reform, hoping that a wider public dissemination of the manifest evils
of prisons will eventually result in changes. For example, Menninger
states that we label persons as "criminal" and then "force them through
an experience that is soul-searing and dehumanizing.""* He goes on to
refer to "our present stupid, futile, abominable practices against de-
tected offenders" and states that we have a system that attacks crimi-
nals "as if they were the embodiment of all evil."19 Only time can tell
whether thjs approach will eventually lead to salutary changes in prison
treatment programs. In the meantime, one might fairly conclude that
prison administrators who do not react defensively to this kind of criti-
cism are not human.
In considering obstacles to the development of mental health serv-
ices in correctional institutions, one cannot overlook some of the unre-
warding features of the practice of clinical psychiatry. No doubt, some
of these factors have contributed to the steadily declining interest in
institutional practice which has been observed over the past several
decades or so. Commenting on this trend, Kubie has observed that
clinical work with patients is painful; that the attainment of clinical
maturity of judgment is difficult and finally, that these difficulties are
not eased by the prevailing tendency to undervalue clinical skills. Under
these circumstances, he feels that developing physicians are inclined to
find the areas of research and academic medicine more attractive than
clinical practice, particularly that which may be institutionally based.20
Garber has observed that declining interest in clinical practice re-
sults in fewer "patients" being seen by physicians.21 In prisons, where
there is a dearth of trained clinicians, other categories of "helping"
personnel have moved into the vacuum, often with an "anybody can do
anything" philosophy. Sometimes it is difficult to ascertain whether the
benefits of these new treatment efforts are more illusory than real. In
any event, it remains to be seen whether these newly discovered thera-
pists will find more enduring rewards than their more traditional coun-
terparts.
It is fundamental that psychiatric treatment programs be based
"*K. Menninger, The Crime of Punishment 9 (1968).
l9Id.
20Kubie, The Retreat from Patients, 24 Arch, of Gen. Psychiatry 98 (1971).
2,Id. at 106.
680 MISSISSIPPI LAW JOURNAL [vol. 45
upon concepts of individualized treatment with equal opportunities for
all to receive an equivalent quality of service. Such programs are de-
signed to foster closer relationships between the donors and recipients
of treatment services, to facilitate accurate diagnoses and optimal un-
derstanding and collaboration in the treatment process. In order to treat
a patient effectively, a doctor must get close enough to his patient to
know him and his problems, and to enlist his confidence and active
participation in the healing process.
On the other hand, custodial programs which are designed to pre-
serve discipline and order require the maintenance of some distance
between those who are trying to preserve order and the individuals
whom they seek to contain. Most custodial programs rely heavily on
standard operating procedures, which limit opportunities for individual
choices and initiatives and reduce individual needs for decision making.
The offer of tangible rewards for conformity reinforces dependence and
further inhibits individual initiative. Thus, we observe that the require-
ments for custody and individualized treatment are not always compati-
ble, and successful implementation of either custodial or treatment pro-
grams may eventually require that one be compromised to the other, at
least to some extent.
The practice of medicine has always been beset with a series of
ethical problems, many of which remain unresolved today. Among the
more familiar issues are those having to do with the preservation of
confidentiality, the requirement that patients be informed of the risk
and consequences of proposed treatments, the right to indemnification
for malpractice, the right to be treated, and the parallel right to decline
treatment. In the closed institutional setting, where the patient is served
by a state-employed physician not necessarily of his own choice, the
physician-patient relationship is subjected to a unique set of strains and
tests. During this time when civil libertarian activists are busy raising
questions about the possibility of abuse of administrative discretion and
questioning the propriety and applicability of certain treatment meth-
ods, the defense of psychiatric treatment programs has become even
more difficult.
Many of these conflicts are epitomized in the current intense dis-
pute over experimental treatment methods such as psychosurgery in the
treatment of imprisoned offenders. No doubt, there is reason to wonder
if some researchers may not have regarded prisoners as second class
citizens, the conditions of whose imprisonment include coercive ele-
ments which may be exploited to good advantage in the solicitation of
"volunteer" subjects for experimentation. Those researchers who may
have done this justly deserve the criticism which has befallen their
injudicious efforts. Meanwhile, it is unfortunate that the good name of
1974] PSYCHIATRY IN CORRECTIONS 681
science has been scapegoated because of these apparent abuses of dis-
cretion and power.
A recent Michigan case22 offers a hopeful precedent for both the
physician and the correctional institution administrator on the question
of the applicability of psychosurgery and other experimental treatment
methods to individuals who are confined involuntarily. In this landmark
decision the court ruled: "Psychosurgery should never be undertaken
upon involuntarily committed populations, when there is a high-risk,
low-benefit ratio as demonstrated in this case. This is because of the
impossibility of obtaining truly informed consent from such popula-
tions."2' Because of the experimental nature of the treatment and the
lack of medical knowledge on the subject, the court found that knowl-
edgeable consent was literally impossible. With regard to the volun-
tariness of consent in this context, the court stated, "It is impossible
for [an involuntarily detained mental! patient to be free of ulterior
forms of restraint or coercion when his very release from the institution
may depend upon his cooperating with the institutional authorities and
giving consent to experimental surgery."24 Finally, the court questioned
the State's interest in performing psychosurgery and concluded:
Intrusion into one's intellect, when one is involuntarily detained and
subject to the control of institutional authorities, is an intrusion into
one's constitutionally protected right of privacy. Before a State can
violate one's constitutionally protected right of privacy and obtain
valid consent for experimental psychosurgery on involuntarily detained
mental patients, a compelling State interest must be shown. None has
been shown here.2"'
Almost contemporaniously with the publication of this opinion two
prominent proponents of the use of brain surgery in the treatment of
aggression have concluded that "psychiatric neurosurgery should never
be performed on persons in any context in which they are under the
jurisdiction of a court as the result of alleged criminal activity."28 It is
to be hoped that all professionals will adopt this position so that this
question may be laid to rest. At the same time, continuing attention
must be given to the ethical and sociopolitical implications of the use
of a variety of other experimental behavior modification techniques on
members of involuntarily confined populations, particularly when risks
and benefits are uncertain.
"Kaimowitz v. Michigan Dep't of Mental Health, 42 U.S.L.W. 2063 (Wayne County
Cir. Ct., Mich. July 10, 1973).
™Id.
2iId. at 2064.
2:'Id.
2r'Mark & Neville, Brain Surgery in Aggressive Epileptics, 226 J.A.M.A. 772 (1973).
682 MISSISSIPPI LAW JOURNAL [vol. 45
In considering the future of psychiatry in corrections it seems ap-
propriate to suggest that psychiatric interventions should be determined
by the primary role of psychiatrists, which is to function as physicians
whose task it is to diagnose and heal illness and to ease human suffering.
While no one can aspire to the eradication of all human suffering, it is
reasonable to hope that something can be done to ease the most obvious
human suffering. Toward that end, psychiatrists should be called upon
to develop and implement programs within prisons to identify and treat
those prisoners who are most obviously mentally ill. For those mentally
ill prisoners who cannot be adequately treated within prison facilities,
alternative resources must be developed.
No one knows the extent of the suffering of the mentally ill in
prisons, nor the weight of the burden which the mentally ill impose upon
the prison system. It has been estimated that at least 20 percent of any
representative state prison population will be found to have some de-
monstrable emotional or mental illness employing usual diagnostic cri-
teria and methodology.27 To get some idea of the magnitude of this
problem, consider the North Carolina prison system where there are
about 10,000 prisoners in confinement any day of the year, and where
approximately 13,000 commitments were received last year. If the 20
percent prevalence rate for mental disorder is applied to this population,
we find that the system received at least 2,600 prospective mental cases
last year or about 10 each working day. From experience, it is known
that a caseload of this magnitude will provide material for several thriv-
ing outpatient clinics and perhaps a small mental hospital. For the most
effective handling of this problem, I would recommend the establish-
ment of suitably staffed mental health clinics within penal institutions.
Another highly productive way of discovering and dealing with
mentally disordered offenders involves the use of pre-sentence diagnos-
tic study procedures.28 These study procedures permit the diagnosis of
mental disorder prior to the imposition of final sentence so that courts
can prescribe treatment programs which are tailored to fit the individ-
ual needs of mentally ill, as well as other problem offenders, who are
found to require more than those treatment resources which are avail-
able in conventional prison programs.
Within the clinical programs which are established to provide treat-
ment for needful mental cases among the prisoner population, the staff
can also implement behaviorial science training programs for the benefit
of the various classes of institutional personnel involved in the correc-
27Guttmacher, The Psychiatric Approach to Crime and Correction, 23 Law & Con-
temp. Prob. 633, 635 (1958).
2\Smith, Psychiatry in Corrections, in Fundamentals of Criminal Behavior and
Correction Systems 288-90 (G. Cull & R. Hardy ed. 1973).
1974] PSYCHIATRY IN CORRECTIONS 683
tional process. These learning opportunities should be available to all
who can be appropriately involved. For instance, medical students and
psychiatrists in training can have useful learning experiences in these
settings. Staff psychiatrists should also be involved in continuing educa-
tional activities to enhance their knowledge and to keep them abreast
of new and emerging developments. Those providing direct services to
prisoners within the institution, as well as those involved in administra-
tion, can benefit from exposure to training in this area. While there is
continuous debate as to whether such training should be focused on
higher echelon prison management personnel or on line officers, it seems
that there is an emergent need for line officers to learn better ways of
dealing with and controlling emotionally and mentally disturbed prison-
ers than billy clubs, high pressure water, and mace.
Finally, to achieve a balanced program, the mental health services
should be involved in research and evaluation. In most prison systems
it is probable that the only potential for developing a useful model for
research and evaluation lies somewhere within the health services or-
ganization, be it ever so rudimentary. These health care units need to
keep abreast of social developments and trends in order to fulfill their
function at anything near an adequate level. Those who provide these
services must recognize the needs and attitudes of their consumers and
they must contribute to the development of acceptable programs re-
sponsive to these needs.
In devising approaches to the solution of these difficult problems, I
would suggest that we be guided by the humanistic philosophy of the
late Sir Norwood East, a noted British psychiatrist, who stated:
However this may be, our part must be carried out in the spirit of
scientists who are able to take long views and perceive the shape of
things to come, who are concerned with men and women and the naked
facts of life and living as well as with the inexorable realities of disease
and death, who are willing to serve both State and lawbreaker with all
the energy and goodwill of our humanistic tradition, and who, in spite
of disappointments and rebuffs, maintain an abiding faith in man's
usefulness to man. Moreover, as trustees of progress and truth we must
not let our legatees remind us of the "Writing On The Wall" for "The
Moving Finger writes; and, having writ, Moves on . . . ,"29
29N. East, Society and the Criminal 25 (1951).
MISSISSIPPI'S PRISON EXPERIENCE
David M. Lipman*
"The degree of civilization in a society can be judged by entering its
prisons."
Dostoevsky
"[PJresent conditions at Parchman are philosophically, psychologi-
cally, physically, racially and morally intolerable."'
Introduction
Mississippi's penal history is one of exploitation and neoslavery
punctuated by nominal reforms compelled only by public outcries and
political prudence. This system now confronts modern concepts of reha-
bilitation with historical prejudices. Since the nascency of the system,
the prevailing concern has been to maintain inmates without cost to the
state; indeed, the aim has been to operate at a profit. Accordingly,
attempts by other penitentiaries toward convict rehabilitation2 have
been largely ignored, and the Mississippi State Penitentiary at Parch-
man stands presently as a monument to the neglect and outrages which
have historically characterized the state's penal system. Parchman re-
tains even today the vestiges of slavery and avarice which have histori-
cally characterized it.
I. Historical Background of Mississippi's Penal System
A. The Walls
Early in Mississippi's history, a citizen who incurred the wrath of
*A.B. 1967, University of Pittsburgh; J.D. 1970, Duquesne University. Member of the
Mississippi and Pennsylvania bar associations. Chief Counsel, Mississippi Prisoners' De-
fense Committee sponsored by the Lawyers' Committee for Civil Rights Under Law,
Jackson, Mississippi.
The author would like to express his appreciation to Jamie Dahlberg and Brent Leitel
for their superb research assistance as well as for their thoughts which contributed to this
article. The views expressed herein, however, are solely those of the author.
'Gates v. Collier, 349 F. Supp. 881, 892 (N.D. Miss. 1972) (District court quoting
from a report by a consultant committee, engaged by the Mississippi State Planning
Agency, the Law Enforcement Assistance Administration (LEAA), and the American
Correctional Association which reviewed conditions at Parchman in 1972).
2As early as 1870, the correctional profession in its landmark declaration of principles
presented to and adopted by the National Congress on Penitentiary and Reformatory
Discipline proposed the ideal of nonpunitive, rehabilitative, and humane treatment that
has been all but ignored throughout Mississippi's penal system's history. The National
Congress on Penitentiary and Reformatory Discipline was the forerunner of the American
Correctional Association.
685
686 MISSISSIPPI LAW JOURNAL [vol. 45
his neighbors was dealt with in any number of arbitrary and imaginative
ways, primarily because the state lacked a central detention facility for
prisoners.
In the absence of a central penitentiary, squalid county jails, serving
mostly as places of detention, indiscriminately housed prisoners of all
ages and classes. In at least one case the authorities, lacking an ade-
quate jail, chained their prisoner to a tree.3
Indeed, a facility for confining prisoners was hardly necessary in
view of the existing criminal code which provided "retributive rather
than corrective justice,"4 and whose severity taxed credulity.5
Eventually, a large sector of the citizenry became convinced that
criminal penalties were entirely out of proportion to offenses; this senti-
ment was evidenced by the reluctance of jurors to enter unfavorable
verdicts where defendants would receive particularly cruel punishment.
In addition, correspondence received by governors during this era testi-
fies to the concerted efforts of citizens throughout the state to secure
executive clemency for vast numbers of convicts. These citizens gener-
ally implored state officers to temper criminal penalties in order that
they correspond more reasonably to the particular crimes.
The urgency for a fundamental reformation of Mississippi's penal
code was manifested by a struggle during the 1830's between reform
forces and those who opposed the broad use of executive clemency.
This was accompanied by a simultaneous upsurge in the level of law-
lessness throughout the state. In an address to the legislature in 1831.
Governor Gerard C. Brandon urged modifications of the criminal code,
calling Mississippi's prison system one of the two worst in the nation.
and asserting that the guilty frequently went unpunished because
"jurors, softened by the growing humanitarian spirit, refused to con-
demn the hapless defendant to the merciless penalties decreed by
law.""
While rehabilitation may have been foremost in the minds of hu-
manitarians urging penal reforms, the crucial question for state officials
was whether a prison could be not only financially self-sustaining, but
ultimately a source of state revenue.
Thompson, Reforms in the Penal System of Mississippi 1820-1850, 7 J. Miss. History
51, 54 (1945).
*Id.
^Making little or no distinction between major and minor crimes, it decreed
the death penalty for numerous offenses and exacted society's vengeance for
other transgressions by branding the wrongdoer, publicly lashing him on the
bare back, or forcing him to stand in the pillory as an example to wayward youth
and as the laughing stock of those who passed.
Id. at 53.
"Id. at 54.
1974] MISSISSIPPI'S EXPERIENCE 687
[F]rom the very first agitation for its establishment and continuing to
the present, an underlying economic emphasis — concerned more with
a critical analysis of costs than with services — has been the most realis-
tic key for the understanding of its operation.7
Definitive legislative action to establish a central prison was post-
poned because of insufficient funds until 1836 when the legislature ap-
propriated $75,000 for construction of a penitentiary8 comparable to that
advocated by reformers and which combined rehabilitation with profita-
ble labor. Built by convicts and situated at the present site of Jackson's
New Capitol, the prison opened in 1840 with only 25 of its 150 cells
completed;9 but it provided convicts with decent food and clothing and
"moral instruction" to accelerate their reform.1"
Apprehensions from some circles that a prison would be a financial
liability were quickly dispelled by the profits realized from prison prod-
ucts," and 10 years after its opening, "The Walls" was reportedly capa-
ble of producing $45,000 worth of goods annually, almost half of which
redounded to the economic benefit of the state.12
Shortly after the penitentiary opened, however, the cruelty which
was to pervade the evolution of Mississippi's penal system evidenced
itself. Four years after "The Walls" admitted its first prisoner, a special
investigating committee determined that at least one inmate's death
was the result of a beating by the superintendent. At that time, the
legislature categorically proscribed beating and whipping,13 a gesture of
little significance in view of the numbers of documented atrocities vis-
ited on Parchman inmates even in recent years.
7Foreman & Tatum, A Short History of Mississippi's State Penal System, 10 Miss.
L.J. 225 (1938).
Thompson, supra note 3, at 64.
"Id. at 65.
wId. at 72-73.
"As part of the reformatory process, convicts were trained in a variety of skills and
eventually the prison's labor force included carpenters, masons, wheelwrights, cobblers,
and blacksmiths. At the inception of the prison shop program, losses were sustained as a
result of the small number of prisoners and the initial investments in machinery, but
rumblings of criticism were quelled as the state began to realize substantial profits from
the program. Eventually, the prison's high level of productivity began to threaten organ-
ized mechanics who claimed wards of the state should not be allowed to compete with
free laborers. In addition, the mechanics claimed the illegitimate competition was forcing
laborers out of the state and expressed distaste at the prospect of associating professionally
with ex-convicts. In response to these pressure groups and also in an attempt to ease
Mississippi's dependence on northern producers, the legislature in 1846 converted prison
shops into factories for the manufacture of the coarse clothing for slaves. Id. at 73-74.
nId. at 74.
l3It is interesting to note that the current statute "discourages" corporal punishment
but does not forbid it. Miss. Code Ann. § 47-5-145 (1972).
688 MISSISSIPPI LAW JOURNAL [vol. 45
Despite the prison's inadequate heating, impure water supply, and
crude sanitary facilities, the Penitentiary Report of 1855 characterized
inmates as "cheerful, contented, obedient, faithful, and industrious."14
If that description is accurate, it is a painful irony that imprisonment
in "The Walls" over 100 years ago was more humane than incarceration
today in the state facility at Parchman.
Regrettably, the commendable advancements in penal reform ac-
complished in Mississippi between 1820 and 1850 were among the cas-
ualties of the Civil War. As the tension which finally erupted in the Civil
War heightened, sectional strife distracted attention from prison reform,
and at the war's conclusion, Mississippi's prison system entered into its
most contemptible and disgraceful period, when offenders were sub-
jected to ineffable terrors under the notorious convict leasing system.
B. Convict Leasing
During the period between 1860 and 1867 when every available
resource was funneled into wartime expenses, little could be done to
maintain or improve "The Walls." The prison was converted into a
munitions plant in 1863, and to accommodate this mutation some pris-
oners were released to join the ranks of the Confederate Army, others
were distributed to jails throughout the state, and the most intractable
were transferred to Alabama's prison.15 At the war's end, funds neces-
sary to restore the penitentiary, which had been destroyed by Sherman's
army, were not available, and Mississippi once again found itself with-
out an adequate penal facility. An impoverished treasury, an acute
labor shortage, and a population of prisoners which exceeded the mini-
mal accommodations offered at "The Walls" provided ideal circumstan-
ces for the institution of a system of convict leasing.16
Therefore, in 1867 Governor B.J. Humphries approved a joint reso-
lution17 providing for convicts to be leased to individual contractors for
work on railroads, levees, roads, or any enterprise with an interest in
l4Thompson, supra note 3, at 72.
''•Foreman & Tatum, supra note 7, at 259.
,B"A wave of destruction and an aftermath of poverty left the South helpless to deal
with a crime rate which almost doubled after emancipation. . . . [T]he economic strin-
gency of the post-Civil War days made [convict leasing] seem a necessity." J. Ezell, The
South Since 1865, at 365-66 (1963).
17A series of resolutions beginning in 1866 delegated an increasing share of the respon-
sibility to the lessees and culminated in 1884 with an Act which leased the entire peniten-
tiary to the Gulf and Ship Island Railroad Company. Two years later the legislature
abandoned all pretense and appointed the Railroad Commissioners as Board of Control
of the penitentiary. Law of Oct. 27, 1866, ch. 146 [1866], Miss. Laws 212, 213; Law of
Feb. 21, 1867, ch. 509 [1867], Miss. Laws 735-36; Law of March 15, 1884, ch. 18. § 8
[1884], Miss. Laws 26-27; Law of March 17, 1886, ch. 25, § 7 [1886], Miss. Laws 77.
1974] MISSISSIPPI'S EXPERIENCE 689
leasing. l8 With provisions requiring the convicts' consent in writing, and
prohibiting work which might endanger prisoners' health, the system
appeared the most acceptable of a number of unsavory options, but
tacitly accepted cruelty and abuse soon pervadsd the convict leasing
system and assured it a place as one of the most nefarious schemes ever
countenanced by a "civilized" society.
It is clear that the resemblances between the convict leasing system
and slavery are not illusory. Insidious racism has been and remains a
distinguishable element of Mississippi's penal system. Prior to the Civil
War, racial classification was rarely a problem within jails or the state
prison, primarily because the preponderance of convicts were white.19
Imprisonment was not viewed as an acceptable punishment for offenses
by slaves, both because slaves would hardly have considered it a puni-
tive measure, and because the inconvenience of their absence from work
outweighed the remedial effect for the offender. In lieu of imprisonment,
slaves were corporally punished according to their crime.20
With the emancipation of slaves, other methods of regulation were
devised and implemented. The resulting racial demarcation quickly
spread to the prisons:
The general method of handling prisoners in the various jails was to
place them in the municipal chain gang for work on the streets. Even
the Negro women were often included in such groups. In the black-belt
towns these chain gangs quickly assumed a racial character. The feel-
ing that no white man should be included in them caused mayors to
remit fines or white citizens to collect funds for their payment.21
Thus, the "freedom" which had been granted to blacks closely resem-
bled slavery and lingering, pernicious traces of racial suppression found
'"Foreman & Tatum, supra, note 7, at 260.
Hd. at 256 n.6.
2"As one historian has noted:
Both in the mode and the kind of punishment there were several differences
between the treatment of slaves and white persons .... The punishments of
slaves by the State were of three other kinds. The whip was used on those
convicted of either petit or grand larceny, with a maximum of thirty-nine lashes
"well laid on," according to the language of the laws. At the other extreme, the
death penalty was imposed for the commission of certain felonies, and it is
noticeable that some felonies were punishable by death, if the criminal were a
slave, but by lesser penalties, if he were a free white person. Finally, if a slave
was convicted of a felony that was not capital, the law directed that he or she
be burnt in the hand by the sheriff in open court and given such other corporal
punishment as the court ordered. The penalty for the second offense was death.
C. Sydnor, Slavery in Mississippi 83 (1966).
21V. Wharton, The Negro in Mississippi 1865-1890, at 233, 235 (1947).
690 MISSISSIPPI LAW JOURNAL [vol. 45
a willing accomplice in the convict leasing system.22
During the early period of convict leasing, prisoners were generally
leased to wealthy speculators who were paid by the state for the con-
victs' maintenance and transportation. These speculators subsequently
leased the convicts to planters and railroad and levee contractors who
amassed fortunes by taking advantage of the free labor available
through the system.23
Contributing in no small degree to the proliferation of the convict
leasing system was Mississippi's notorious "pig law,"24 which was
largely responsible for an appreciable upsurge in the convict population,
particularly the black inmate population, from 272 in 1874 to 1,072 at
the end of 1877 when the law was finally repealed.25
Admittedly, the establishment of the convict leasing system can
largely be attributed to compelling financial realities in Mississippi and
can be viewed as the logical successor to slavery. Flourishing throughout
the state, convict leasing enveloped every injustice of slavery and none
of the restraints. The welfare of convicts was of negligible concern to
sub-lessees, who were preoccupied only with extracting the largest mea-
sure of return possible at the most modest expense.26 Recognizing that
convict labor could be arranged more profitably for the state's excheq-
uer, Mississippi eventually abandoned its policy of providing lessees
with funds for the maintenance and transportation of convicts in favor
of per capita rates charged for convict labor.27 The inevitable effect of
this action, of course, was that the state profited in proportion to the
22"[Convict leasing] could only have flourished in an ex-slave state where ex-slaves
made up the great majority of its convicts." Jones, Penitentiary Reform in Mississippi, 6
Publications of the Miss. Historical Soc'y 120 (1902).
"For example:
[A remarkable contract was made] with Edmund Richardson, planter,
capitalist, and speculator, under which Richardson received almost absolute
control over the prisoners of the state until November, 1871. Richardson not only
gained the labor of the convicts without cost, but also received from the state
$18,000 yearly for their maintenance and almost $12,000 for their transportation.
There is little wonder that he came to be known as the greatest cotton planter
in the world with a crop that in one year reached the amazing total of 11,500
bales.
V. Wharton, supra note 21, at 237.
24Law of April 5, 1876, ch. 57 [1876], Miss. Laws 51-52. The "pig law" provided that
the crime of stealing personal property valued at $10 or more or livestock at $1 or more
was grand larceny, punishable by imprisonment up to 5 years.
25V. Wharton, supra note 21, at 237.
2fi"The South's 'penitentiaries' were great rolling cages that followed construction
camps and railroad building, hastily built stockades deep in forest or swamp mining fields,
or windowless log forts in turpentine flats." C. Woodward, Origins of the New South 213
(1951).
"Foreman & Tatum, supra note 7, at 262.
1974] MISSISSIPPI'S EXPERIENCE 691
number of convicts being worked and that lessees redoubled their ruth-
lessness toward prisoners in order to continue realizing hefty profits.28
The most telling testament to the cruelty and abuses in convict
camps can be found in reports such as that of a grand jury which in 1887
inspected Mississippi's penitentiary hospital.
We found [in the hospital section] twenty-six inmates, all of whom
have been lately brought there off the farms and railroads, many of
them with consumption and other incurable diseases, and all bearing
on their persons marks of the most inhuman and brutal treatment.
Most of them have their backs cut in great wales, scars and blisters,
some with the skin pealing [sic] off in pieces as the result of severe
beatings.
Their feet and hands in some instances show signs of frost bite, and all
of them with the stamp of manhood almost blotted out of their
faces. . . . They are lying there dying, some of them on bare boards,
so poor and emaciated that their bones almost come [sic] through
their skin, many complaining for the want of food.
[W]e actually saw live vermin crawling over their faces, and the little
bedding and clothing they have is in tatters and stiff with filth.29
Some protest to the system occurred in 1884 when the respectable
citizens of Vicksburg were confronted with the horrid spectacle of a
group of emaciated and disabled prisoners in transit from a convict
camp to the penitentiary hospital in Jackson. The sight of the cadaver-
ous and mutilated convicts was so abhorrent to the sensibilities of
Vicksburg city officials that a covered wagon was provided to convey the
group to the city's railroad station.30 The Vicksburg incident prompted
a legislative investigation, but although the subsequent report was pub-
lished in newspapers around the state, it mysteriously disappeared from
the legislature before being studied by state officials.31 Such carelessness
was typical of the prevailing indifference toward the atrocities of convict
leasing. That vocal protest against this state sanctioned outrage was so
slow in developing can be attributed to a myriad of factors, not the least
of which was that the overwhelming proportion of those who suffered
under the system were black.32
2RJones, supra note 22, at 113.
29V. Wharton, supra note 21, at 241, citing Hinds County GrandJury Report, Jackson
Weekly Clarion, July 13, 1887.
30Foreman & Tatum, supra note 7, at 262.
3l/d. at 262-63.
32Southern exponents of the leasing system, . . . argued that 90 percent of the
laborers were Negroes of the lower class who benefitted from being worked
regularly. Also, since they were accustomed to outdoor life, this was more hu-
692 MISSISSIPPI LAW JOURNAL [vol. 45
Excesses under convict leasing are clearly reflected in convict death
rate statistics during the 1880's. The average annual death rate among
Negro convicts in Mississippi from 1880 to 1885 was almost 11 percent,
for white convicts about half that, and in 1887 the general average was
16 percent.33
When opposition to the lease system finally became effective, it was
because small farmers saw it as an exclusive privilege of wealthy planta-
tion owners and because the general public was appalled by the inhu-
manities of the system. In addition, sublessees saw their reputations
becoming tarnished by what they perceived as "unjust and harmful
criticism" of their employment practices.34 Opposition to leasing culmi-
nated in 1890 when the legislature ordered the system eliminated by the
end of 1894.35 In the interim, an effort was made to procure areas of land
for penal farms, and convicts were permitted to work only on state
construction sites.36
In 1894, the legislature purchased large acreages in Rankin, Hinds,
and Holmes Counties and established penal farms which rapidly began
to register profits for the state. The three state farms, however, were not
able to provide work for Mississippi's entire prisoner population. To
compensate for the deficiency the state penitentiary board leased addi-
tional land from private plantation owners who retained supervision of
their land, enjoyed the free labor of surplus convicts, and shared profits
equally with the state. Despite these efforts to abandon convict leasing,
it was not until 1906 that the system was entirely eradicated. This
herculean task can be credited in large part to James K. Vardaman,
whose efforts at penal reform occupied a significant portion of his guber-
natorial career.37
C. The Mississippi State Penitentiary at Parchman
Prompted by the fiscal success of its prison farms, the legislature
mane and healthful than cooping them up within walls. The convicts were more
reliable and productive than free labor.
J. Ezell, .supra note 16, at 368-69.
33V. Wharton, supra note 21, at 240. "These figures become more significant when
they are compared with the percentages of deaths in six prisons in the Middle West in
1884, 1885, and 1886. These ranged from 0.51 percent to 1.085 percent." Id. at 241 (foot-
note omitted).
34C. Woodward, supra note 26, at 214.
35Miss. Const, art. X, §§ 223-26. Sections 223, 224, and 225 forbade the leasing of
penitentiary convicts. But section 226, in contrast to the previous sections, provided for
the continued leasing of county jail inmates with only minor restrictions.
MV. Wharton, supra note 21, at 242.
"Holmes, James K. Vardaman and Prison Reform in Mississippi, 27 J. Miss. History
229 (1965). Vardaman's progressive, humanitarian stance in the area of corrections was
in complete contrast to his racism.
I believe every dollar invested for negro education under our present free school
1974] MISSISSIPPI'S EXPERIENCE 693
in 1900 expanded the system to include the 14,000 acre Parchman plan-
tation in Sunflower County, which has burgeoned to its present size of
some 21,000 acres. By its brutal treatment of inmates,38 Parchman has
established a national reputation for inmate repression and degrada-
tion. Significantly, the criminal treatment of inmates which has plagued
Parchman since its early years has been habitually accepted as neces-
sary for efficiency, productivity, and profit. A legislative investigation
in 1913 which uncovered a widespread pattern of administrative corrup-
tion "set the tone of future penal investigations in Mississippi,"39 and
penology assumed secondary importance to the amount of revenue gen-
erated for the state. In 1929 the Handbook of American Prisons ob-
served that where all proceeds from prison labor return to the general
fund and where prison administrators depend on legislative appropria-
tions for maintaining the farms, there is little incentive for penal im-
provement.1"
One aspect of prison life unique to Parchman and viewed by some
as surprisingly avant-garde is conjugal visitation. Although some au-
thorities date its origin as long ago as 1918, 41 it has become a formal
practice only within the last two decades. Hailed by a substantial seg-
ment of contemporary sociologists and penologists as an innovative and
sane method of normalizing the lives of incarcerated men, conjugal visit-
ation at Parchman nevertheless clearly has its roots in the racism which
always has pervaded Mississippi's penal system.
While conjugal visitation privileges are extended today at Parch-
man to every married inmate in good standing,42 in its early years the
system is an indefensible and unwarranted prodigality of cash. It is a crime
against the white man who furnishes the dollar and a disadvantage to the negro
upon whom it is spent. . . . Slavery is the only process by which he (the Negro)
has been partially civilized. God Almighty created the negro for a menial — he
is essentially a servant.
Governor's address to the Legislature, 1906.
3KAs C. Hopper noted:
[Inmates] have worked from daylight until dark in the woods and fields
of the plantation, frequently under the threat of floggings and a variety of
"unofficial" techniques such as beatings with chains and blackjacks, and even
shooting. Work has been the most important activity in the penitentiary and
everything else overshadowed by it. Even medical attention at times has been
unavailable to men at work in isolated areas of the plantation.
C. Hopper, Sex in Prison 21, 22 (1969).
™Id. at 21.
'"National Society of Penal Information, Inc., Handbook of American Prisons and
Reformatories 527 (1929).
4,C. Hopper, supra note 38, at 52.
42Although both races may have the visitation privilege, there still is a considerable
difference in the procedures as between blacks and whites.
[F]or example, no visitors of any type are allowed in the living quarters for
white men unless they are chaperoned. Yet truck loads of women are permitted
694 MISSISSIPPI LAW JOURNAL [vol. 45
practice was reserved exclusively for black inmates, and marital status
was not a criterion.
Considering that black inmates had historically been relegated to
inferior quarters, more arduous work assignments, and generally lesser
standards of treatment than their white counterparts,43 it is not unrea-
sonable to suggest that, in an attempt to quell potential insurrections,
Parchman officials proferred visitation pr,'viieges to black inmates in
order that they might more readily submit to their oppressors. As one
camp sergeant observed in 1963, "If you let a nigger have some on
Sunday, he will really go out and do some work for you on Monday."44
Professor Columbus B. Hopper of the University of Mississippi,
after a decade of studying Parchman's conjugal visiting program,
blithely acknowledged the importance of race in the origins of conjugal
visitation.
There can be little doubt of the significance of racial segregation in the
initiation of conjugal visits at Parchman. The practice began in the
Negro camps where the white staff members were tolerant of the in-
mates' sexual needs. Although the Negroes' position as members of the
"lower caste" had its disadvantages, it did relieve them of the moral
restraints which the white society imposed on all whites, including
white prisoners. At the time Parchman was established, Negroes were
typically viewed by white southerners as being "naturally" promis-
cuous and as having greater sexual needs. The white sergeants of Negro
camps simply "looked the other way" in accommodating what they
considered to be natural among Negroes. As the buildings used for
conjugal visiting appeared in Negro camps and as the practice became
more respectable, it was accepted in the white camps . . . And sex,
being such a basic and persistent need among young males, is, of
course, a factor to be taken into consideration when economic goals are
given a place of prominence.45
Many of Parchman's institutional codes may be attributed to its
fundamental character as a plantation.
[Sjince the Mississippi State Penitentiary is built upon the plantation
structure and performs the basic functions of a plantation, it cannot
escape, at a general level, evidencing the essential patterns of interac-
to enter the various camps for Negro men. Commercial prostitutes make their
weekly visits to these camps . . . without any . . . examination. [Also] quart-
ers are provided for these Negro women during their visits to the camps. During
the day they occupy rooms on the basement floor of the central building.
Id. at 53.
"See, e.g., Gates v. Collier, 349 F. Supp. 881, 887 (N.D. Miss. 1972).
MC. Hopper, supra note 38, at 95.
l*Id. at 79, 80.
1974] MISSISSIPPI'S EXPERIENCE 695
tion characteristic of the plantation system.46
Thus, the prison superintendent is successor to the plantation master,
and prisoners are analogous to the slaves of by-gone eras. Under slavery,
separate quarters were provided for the races, menial tasks were as-
signed to black men, and a racially disparate system of justice was
imposed. Similarly at the Parchman plantation:
inmates are assigned to the 12 major residential camps on the basis of
race. Inmates are assigned to work details according to race . . . black
inmates in some instances have been subjected to greater punishment
or more severe discipline than have white inmates for similar infrac-
tions of penitentiary rules.47
The most distinctive "pattern of interaction" at Parchman relates
to racial classification. Even Parchman's vocational training program,
the prison's first attempt at rehabilitation since its creation, was origi-
nally designed only for inmates at the first offenders camp, an exclu-
sively white camp.4S
Race dictates every aspect of an inmate's treatment at Parchman
from the most mundane to the most crucial. Every injustice which is
perpetrated on the prison's inmate population is exacerbated for Parch-
man's black inmates.
Pursuant to legislation enacted in 1936, the Penitentiary Commit-
tee, composed of legislators appointed by the governor, is responsible for
visiting the prison during each regular session to inspect and make
recommendations for its operation. Despite this attempt on the part of
the legislature to guard against penological abuses, the reports, some of
which depict outrageous conditions at Parchman, have not prompted
corrective legislation. The Report of 1936 discloses:
At Camp B we found that there are 173 men and 105 beds and the
bedding is in a deplorable condition. The men have had to "double up"
considerably on single beds and many of the beds are not fit for any
use whatever. . . . We do not think . . . that we can say anything that
would be too bad about this Camp.49
Certainly, the surfeit of expert committee reports and litigation
"Id. at 73.
47Gates v. Collier, 349 F. Supp. 881, 887 (N.D. Miss. 1972).
'"Bicentennial Report of the Penitentiary Committee (1968) (Miss. State Archives,
Jackson, Miss.) [hereinafter cited as Bicentennial Report]. The report notes, "The all-
white first-offenders camp appears to be one of the most successful innovations of recent
years." Id. at 7.
"Report of the Penitentiary Committee (1936) (located in Miss. State Archives,
Jackson, Miss.).
696 MISSISSIPPI LAW JOURNAL [vol. 45
involving Parchman renders incomprehensible assertions from any
quarter of ignorance about conditions at the prison.
After more than 60 years of benign indifference to conditions at
Parchman, public attention was focused there late in 1965, when 250
civil rights demonstrators from Natchez were detained in the prison's
maximum security unit. In Anderson v. Nosser™ the Fifth Circuit found
the prison conditions and practices "sub-human" and violative of con-
stitutional proscriptions against cruel and unusual punishment.
On arrival all male prisoners were required to strip naked and all
women prisoners were ordered to remove their shoes, stockings, sweat-
ers, coats, jewelry, and wigs. All were compelled to consume a laxative
and were deprived of all personal belongings, including sanitary nap-
kins and medicines. The prisoners were then led to the cells. Up to eight
persons were placed in each cell, which contained two steel bunks with-
out mattresses or other bedding, a toilet without a seat, and a washba-
sin. There were no towels or soap and there was inadequate toilet paper.
The temperature ranged from 60 to 70 degrees, the chill being aggra-
vated by exhaust fans which blew intermittently on the occupants.
Some of the men eventually were permitted to get their underwear, but
others were nude for a period of 36 hours.51
No real justification for the treatment was offered other than that "the
treatment was merely the standard operating procedure for the Maxi-
mum Security Unit."52 Further contributing to Parchman's notoriety
and infamy in recent years was a riot in 1968 which brought the prison
highly unfavorable publicity. A legislative investigation followed, and
the rather insipid report issued attributed the riot to: (1) criticism of
penitentiary administration and policies by individuals outside the
administration; (2) use of prison inmates as drivers; and (3) the change
in the make up of the Penitentiary Committee.53
It is now acknowledged that at the time of the foregoing investiga-
tion, inmates were being summarily subjected to arbitrary beatings,
whippings, sexual assaults, and a battery of inhumane tortures54 com-
pared to which the abuses under convict leasing pale in insignificance.
Of substantial culpability in Parchman's transgressions is the
trusty system, a program whereby an inmate who has demonstrated his
trustworthiness may be placed in a position of authority over other
prisoners. It is clear that the trusty concept is the contemporary coun-
terpart of convict leasing's "strawboss."
5"438 F.2d 183, 194 (5th Cir. 1971).
5iId. at 187-88.
r,2Id. at 193 (footnote omitted).
■"Bicentennial Report, supra note 48.
"Gates v. Collier, 349 F. Supp. 881, 889-90 (N.D. Miss. 1972).
1974] MISSISSIPPI'S EXPERIENCE 697
If the trusty system was designed to reward meritorious conduct, it
has hardly succeeded:
Payoffs, favoritism, extortion, and participation in illegal activities
have influenced the process of recommending and selecting trusties.
Penitentiary records indicate that many of the armed trusties have
been convicted of violent crimes, and that of armed trusties serving as
of April 1, 1971, 35^ had not been psychologically tested, 40^ of those
tested were found to be retarded, and 71% of those tested were found
to have personality disorders. There is no formal program at Parchman
for training trusties and they are instructed to maintain discipline by
shooting at inmates who get out of the gun line. . . . Trusties have
abused their position to engage in loan-sharking, extortion and other
illegal conduct. . . . The evidence indicates that the use of trusties
who exercise authority over fellow inmates has established intolerable
patterns of physical mistreatment. For example, during the Cook ad-
ministration, 30 inmates received gunshot wounds, an additional 29
inmates were shot at, and 52 inmates physically beaten.55
Five years after Anderson, a University of Georgia study group com-
missioned by the Penal Institutions Legislative Study Committee to
review Mississippi's penal system submitted its final report which in-
cluded a limited examination of the Parchman farm.
Two major factors dominate all phases of the program at Parchman.
The first is the farm operation. Historically, and to a large extent
today, the state has expected the penitentiary not only to be self-
supporting, but also to produce a profit for the state. The second pre-
dominate [sic] factor is that the penitentiary is, in effect, operated by
the prisoners. The dependence on armed trusties coupled with the leg-
islative limitation on the number of civilian personnel, regardless of the
diligence of the Superintendent and his staff, could lead to no other
conclusion.5"
Inadequacies in virtually every phase of Parchman's program were at-
tacked in the committee's 68-page assessment of the prison. The report,
in addition to recommending fundamental administrative reorganiza-
tion, contained thinly veiled yet prophetic warnings that if significant
changes were not made expeditiously to ameliorate conditions at the
prison, Mississippi would soon find itself the object of reform-oriented
suits similar to those which had been brought recently against penal
systems of other states.57
iSId. at 889.
5"D. Brewer, Report to the Penal Institutions Legislative Study Committee 20
(1970).
"'E.g., Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Landman v. Royster, 333 F.
Supp. 621 (E.D. Va. 1971); Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971); Hamil-
698 MISSISSIPPI LAW JOURNAL [vol.45
Confirming these conclusions was the report of a legislative com-
mittee also submitted in 1970 acknowledging that ''the total atmosphere
and actual operation of Parchman is completely enmeshed in the use of
armed trusties or shooters . . . [and] is, for all practical purposes,
operated by the prisoners."58 Cautioning against the continued utiliza-
tion of trusty guards, the committee predicted that "it is only a matter
of time before the federal courts will order the complete abolition of the
armed trustie [sic] inmate guard system . . . ,"59 Indeed, premoni-
tions of judicially-imposed standards at the prison were proven accur-
ate.
Only a month before the Fifth Circuit announced its decision in
Anderson, the General Legislative Investigating Committee submitted
to the Governor and Legislature its report concerning the death of a
Parchman inmate, Danny Calhoun Bennett, who, according to prison
records, died as a result of heat stroke. The report, which included a
grand scale indictment of the trusty system, concluded that the inmate
had been murdered.60 This murder occurred during a work assignment
supervised by J.D. Gilmer, a trusty.
J.D. Gilmer was sentenced to Parchman in 1950 to serve a life term for
murder and was paroled in 1960. In February, 1962, his parole was
revoked and he was recommitted to the Penitentiary to serve another
life term for the crime of rape. This is the character of the criminal,
the trusty, who had direct and exclusive supervision of the work detail
to which Danny Bennett was assigned on the day of his death.61
ton v. Schiro, 338 F. Supp. 1016 (E.D. La. 1970); Holt v. Sarver, 309 F. Supp. 362, aff'd
and remanded, 442 F.2d 304 (E.D. Ark. 1970); Jones v. Wittenberg, 323 F. Supp. 93 (N.D.
Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972).
58Penal Institutions Legislative Study Committee, A Study of Adult and Juvenile
Correctional Programs in the State of Mississippi 40 (1970). Only 2 years prior to this
report, however, a legislative committee stated:
To completely eliminate this weakness [inadequate control of trusties] would
require the abandonment of the trusty system. This is financially impossible
since the cost of replacing 400 to 600 trustys [sic] and half-trustys [sic] would
be prohibitive. Generally speaking, this system appears to be satisfactory.
Bicentennial Report, supra note 48, at 7.
5HPenal Institutions Legislative Study Committee, A Study of Adult and Juvenile
Correctional Programs In the State of Mississippi 33 (1970).
""General Legislative Investigative Committee, Mississippi State Penitentiary 62
(1971).
*[Id. at 50-51. George McLaurin, convicted with Gilmer of the murder of Bennett, was
reappointed to trusty status on the same day of his conviction on the personal order of
Superintendent Thomas Cook despite a prison rule proscribing such a promotion within
90 days of conviction of a felony. Letter from Thomas Cook to George McLaurin. Novem-
ber 16, 1971, Gates v. Collier, No. GC 71-6-K, Exhibit 74, Deposition of J. Leland Vanlan-
dingham, January 19, 1972.
1974] MISSISSIPPI'S EXPERIENCE 699
Affidavits from inmates who were present during the beating which
resulted in Bennett's death indicate that trusties were indiscriminately
beating prisoners with the cognizance, acquiescence, and direction of
the sergeant in charge of the work detail.62
What is most significant about the legislative report is that it chal-
lenged the legislature to remedy the savagery which prevailed at the
state prison, beginning with the immediate abolition of the nefarious
trusty system. If, up to this time, legislative indifference to conditions
at Parchman can be excused on grounds of ignorance, after January
1971, when the committee's report was submitted, lack of documented
and specific evidence about penological abuses was no longer a credible
defense for inaction.
The foregoing investigations unquestionably served as a catalyst for
the legislature's approval in April 1971 of a bill which would completely
eliminate the trusty system by July 1974. 63 While the intentions of the
legislature were presumably most noble, it cannot be gainsaid that, in
view of the documented abuses inherent in the trusty system, the legis-
lative response was half hearted at best.
Shortly before a federal district court ordered the implementation
at the Mississippi State Penitentiary of measures intended to bring the
prison into consonance with "contemporary concepts of decency and
human dignity,"64 a special consultant committee was empowered "to
develop a preliminary plan to meet the immediate basic human needs
of the inmate population."63 Having conducted a comprehensive exami-
nation of the penitentiary, the committee observed in its final report
that:
[Tjhere are three basic philosophies so fundamental to the existing
system, which continue to perpetuate the problems existing at Parch-
man today, that they cannot be ignored in this committee's report:
(1) That the prison system must operate at a profit at any cost;
(2) That armed inmate guards are acceptable and capable of insuring
safety and security within the system; and
(3) That security and control are insured through maintaining a high
degree of fear within the inmate population.66
fl2Significantly, 2 years prior to the Bennett murder, a psychologist noted after an
interview with Bennett's sergeant, "I would hesitate to retain him in his present position
of authority and responsibility and control over men." General Legislative Investigative
Committee, Mississippi State Penitentiary 71 (1971).
fi3Miss. Code Ann. § 47-5-143 (1972).
fl4Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972).
fl5Transmittal letter for Law Enforcement Assistance Administration Consultant
Committee, Interim Report on Mississippi State Penitentiary at 2 [hereinafter cited as
Interim Report],
700 MISSISSIPPI LAW JOURNAL [vol.45
Testifying to the preoccupation with finances rather than with in-
mate rehabilitation are the minutes of monthly Board of Commissioners
meetings. During a period of some 20 years, the minutes reflect that the
attention of the board was absorbed with mercantile invoices and pur-
chases, with few exceptions.67 At one meeting in 1946, the board adopted
Rules for the Government of Employees, which provided, inter alia, that
laziness, carelessness, indifference, or inattention on the part of an in-
mate was tantamount to a violation of the rules; that no employee was
to abuse or curse an inmate; and that no more than 15 lashes could be
administered as punishment except in the presence of the superintend-
ent.68 Seventeen years later, the following paragraph was entered into
the minutes:
Since the moral and cooperative attitude of the inmates appears to be
at the highest level in many months, the Commissioners agree with the
Superintendent that punishment of inmates for the infraction of rules
and regulations of the Mississippi State Penitentiary shall be restricted
to the following measures; namely, taking away normal privileges and
confinement in the Maximum Security Unit, and at no time will any
employee be permitted to use the lash.69
Apparently, those proscriptions were paid little heed; the court in Gates
found that trusties and other supervisory personnel were permitted vir-
tually unchecked discretion in administering punishment to Parchman
inmates.70
Consistent through the years, the legislature, while enacting grandi-
ose (and unenforceable) proscriptions against mistreatment of in-
mates,71 has retained as its foremost concern the financial solvency of
the penitentiary; indeed, the legislature has decreed that the prison will
operate "with the view of making the system self-sustaining."72
"Penitentiary Board minutes (located in Miss. State Archives, Jackson, Miss.).
™Id. March 5, 1946.
mId. November 12, 1963.
7nGates v. Collier, 349 F. Supp. 881, 889 (N.D. Miss. 1972).
uE.g., Miss. Code Ann. § 47-5-145 (1972).
nId. § 47-5-1 (1972). The emphasis placed on productivity at Parchman is clearly
indicated in figures reflecting amounts annually returned to the state's general fund in
the last decade from the sale of penitentiary products.
FY 1964 $1,030,877.73
FY 1965 1,025,602.40
FY 1966 888,575.73
FY 1967 1,108,750.85
FY 1968 1,565,360.79
FY 1969 1,290,863.34
FY 1970 834,559.97
FY 1971 1,188,012.05
FY 1972 1,188,126.38
1974] MISSISSIPPI'S EXPERIENCE 701
As intolerable conditions continued to exist at Parchman the vehi-
cle to initiate reform shifted from the unresponsive Mississippi Legisla-
ture and governor's office to the lap of the federal courts. On February
8, 1971, a class action suit was filed by Parchman inmates against the
superintendent of the penitentiary, the members of the Mississippi Pen-
itentiary Board and the Governor. Gates v. Collier™ was born.
II. Gates v. Collier
A. Procedural History
On February 8, 1971, Gates was commenced as a class action on
behalf of all persons who were or who might later be incarcerated in the
Mississippi State Penitentiary. The plaintiff-inmates alleged that their
confinement at Parchman by the State of Mississippi deprived them of
rights guaranteed by the 1st, 8th, 13th, and 14th amendments to the
United States Constitution and by sections 1981, 1983, 1985, and 1994
of Title 42 of the United States Code. Plaintiffs sought an injunction
against the deprivation of their rights during their incarceration and
against certain practices and conditions existing at Parchman. Plaintiffs
also sought a declaratory judgment that the deprivation of such rights
and the continuation of such practices and conditions were unconstitu-
tional.
Shortly after commencement of the suit, the United States District
Court for the Northern District of Mississippi ruled that under Rule 23
of the Federal Rules of Civil Procedure the action was properly main-
tainable on a class basis, there being two overlapping classes of plain-
State of Mississippi Annual Reports of the State Auditor of Public Accounts 63 (1968).
The profit for fiscal year 1973 of approximately $1,384,000 was announced by Governor
Waller on December 19, 1973. Clarion-Ledger (Jackson, Miss.), December 20, 1973, at 1,
col. 7.
Citing Mississippi's uncommon practice of diverting revenues gained from its farming
industry to the state's general fund, E. Preston Sharp, Executive Director of the American
Correctional Association, said:
The most common method of dealing with revenues from prison industries is the
"revolving fund" approach in use in most state systems. In revolving fund sys-
tems, profits are used for industries-related or prison welfare-related purposes;
e.g., inmate wages, salaries for civilian supervisors, capital expenditures for
industrial facilities, maintenance and other operating costs of the industry,
inmate recreation funds, and in some cases, gratuitous payments for non-
working prisoners. Neither Mississippi nor Alabama uses this approach. Ala-
bama's program is even more unfortunate than Mississippi's in that the labor
of inmates must raise a certain portion of the correctional program's budget or
the system will face a like cut in appropriations; remaining profits over the
required share revert to the state's general fund.
Telephone interview with E. Preston Sharp, February 7, 1974.
73349 F. Supp. 881 (N.D. Miss. 1972).
702 MISSISSIPPI LAW JOURNAL [vol.45
tiffs. The first class consisted of all inmates confined at Parchman who
claimed deprivations of the constitutional and statutory rights pre-
viously recited. The second class consisted of Parchman's black inmates
whose grievances included racial discrimination and segregation as well
as the deprivations claimed by the first class.
On August 20, 1971, the United States sought leave to intervene in
this suit pursuant to section 2000h-2 of Title 42 of the United States
Code.74 Its motion was granted by the court on August 23, 1971, making
Gates the first prison reform suit in which the federal government had
intervened.
Thereafter all parties conducted extensive pretrial discovery pro-
ceedings, and the court calendared a full 3-week evidentiary hearing on
all merits of the case to commence on May 15, 1972.
Defendants' motion for a continuance of the trial date filed April
12, 1972, was denied by court following a hearing; yet the scheduled
trial never took place. On May 11, 1972, just 4 days before the trial date,
counsel for all parties agreed to waive presentation of evidence in open
court and to submit the case on the record as made. The record in-
cluded, among other things: the pleadings, stipulations, depositions,
interrogatories and answers, offers of proof, factual summaries, pro-
posed trial plans, evidentiary synopses, photographs, exhibits, reports,
and other documentary evidence assembled by the parties. All of these
items were admitted into evidence, defendants stipulating that they
would not contest the facts set forth therein.75
At the hearing of May 11, 1972, the defendants did more, however,
than merely stipulate as to facts. Mississippi's Governor forthrightly
conceded the constitutional violations in the operation of Parchman
alleged in the plaintiffs' complaint. "We are, in effect, Your Honor,
admitting that the constitutional provisions have been violated."76
On September 12, 1972, the court issued its Findings of Fact and
Conclusions of Law,77 but reserved entry of its judgment and requested
nId. at 885.
7"Id. at 886.
7,iGates v. Collier, No. GC 71-6-K, Transcript of Hearing, May 11, 1972, at 45. It is
noteworthy that the defendant-prison administration and State of Mississippi never
placed in issue a single fact introduced into the record by private plaintiffs or the United
States nor did the defendants dispute a finding of fact made by the court. The Governor
himself, seeking to limit the record, asked the court:
Isn't there enough of the incriminating facts in these depositions and interro-
gatories to give the Court adequate grounds to find a conclusion of fact that the
first amendment and all the other constitutional provisions have been vio-
lated . . . ?
Id. at 43.
"Gates v. Collier, 349 F. Supp. 881, 885-93 (N.D. Miss. 1972).
1974] MISSISSIPPI'S EXPERIENCE 703
counsel for all parties and interested state and federal officials to appear
at a conference on October 16, 1972.
During this 2-day conference, the court heard the views of all inter-
ested parties including penitentiary officials, penitentiary board mem-
bers, members of the legislature and various state agencies, Law En-
forcement Assistance Administration representatives, and the expert
witnesses for the United States, Mr. James V. Bennett, former Director
of the Federal Bureau of Prisons, and Dr. Robert Brutshe, Chief Medical
Officer of the Federal Bureau of Prisons.
A number of technical experts made specific suggestions for im-
provement of certain phases of Parchman's operations. Counsel then
submitted their recommendations as to the proper scope and content of
the court's judgment. The judgment was entered on October 20, 1972.
B. An Analysis of the Decision — Findings of Fact
At the outset it must be recognized that Mississippi's penal failures
are not unique to this state. Degrading prison conditions have evoked
plans for penal reform from various segments of our society78 and are a
great factor in the cause of recent prison disorders.79 In addition there
has been an increasing public awareness that most inmates eventually
return to society adversely affected by their prison experiences.80
7sIn a memorandum dated November 13, 1969, requiring Attorney General Mitchell
to prepare a plan for the modernization of the federal prison system and to expand federal
assistance to state and local correctional officials, President Nixon began by stating: "The
American system for correcting and rehabilitating criminals presents a convincing case
of failure. "5 Weekly Compilation Of Presidential Documents 1596 (Nov. 17, 1969). Chief
Justice Burger has actively supported penal reform in recent years. See, e.g., Burger, No
Man Is an Island, 56 A. B.A.J. 325 (1970). Ramsey Clark, former United States Attorney
General, has described modern American prisons as "factories of crime" and has strongly
advocated sweeping reform. R. Clark, Crime in America 192-218 (1970).
19See, e.g., Why Prisoners Riot, 35 Fed. Probation March 1971, at 9. As an example
of the causal relationship between deficient prison facilities and prison rioting, between
Oct. 1 and Oct. 6, 1970, rioting occurred at five jails in New York City. The list of prisoner
complaints included bad food, brutality, vermin in the cells, and a prison population
which was 183 percent over designed capacity. N.Y. Times, Oct. 4, 1970, at 77, col. 5.
Among the original demands of rioting inmates at Attica State Correctional Facility in
New York were meaningful rehabilitation programs, better food, competent medical care,
and more recreation with less cell time. Id. Sept. 10, 1971, at 1, col. 3.
80The lasting effects of incarceration cannot be underestimated. Although deterrence
of future criminal behavior is one goal of the penal system, present methods of institution-
alization have failed. "The most important crime statistic is . . . that 80 percent of all
felonies are committed by repeaters. That is, four-fifths of our major crimes are committed
by people who are already known to the criminal justice system." R. Clark, supra note
78, at 195-96 (1970). While estimates of recidivism vary depending upon the source, it has
been suggested that as many as two out of three released inmates will be reconvicted.
Note, Turn 'em Loose: Toward a Flexible Corrections System, 42 S. Cal. L. Rev. 683-84
704 MISSISSIPPI LAW JOURNAL [vol.45
The State of Mississippi, the Governor, the Legislature, and prison
administrators cannot escape responsibility for inhumane conditions at
Parchman. Lest the erroneous impression be conveyed by the State of
Mississippi and those responsible that matters at Parchman never really
were all that bad and that now, thanks to defendants' good faith efforts,
conditions at Parchman are beyond reproach, some dispassionate syn-
opsis of the findings of fact from Gates must be set forth.
The district court found the following facts:81
1. The policy and practice at Parchman has been and is to main-
tain a system of prison facilities segregated by race through which
black inmates are subjected to disparate and unequal treatment.
Blacks are housed in more crowded quarters than whites and are de-
nied the same vocational training opportunites. Blacks have been pun-
ished and disciplined more severely than whites for similar infractions
of penitentiary rules.
2. The housing units at Parchman are unfit for human habita-
tion. Facilities for the disposal of human waste at all camps are shock-
ingly inadequate and present an immediate health hazard. Contami-
nation of the prison water supply caused by inadequate sewerage has
led to the spread of infectious diseases.
3. Many of the gross housing deficiencies at Parchman are of
long standing and result from public and official apathy toward the
fundamental needs of the inmates.
4. The medical staff and available facilities at Parchman fail to
provide adequate medical care for the inmate population. As a result
many inmates have not received prompt or efficient medical examina-
tion, treatment, or medication. Inmates are often discouraged from
seeking needed medical attention by punishing those who on examina-
tion appear to be healthy.
5. Except for those confined in the Maximum Security Unit, all
inmates are housed in open barracks known as ''cages" and are thus
at the mercy of each other. The risk of personal injury created by cage
confinement is increased by (a) defendants' failure to classify inmates
according to the severity of their offenses, (b) the prison's reliance on
inmates rather than trained civilian guards as custodial personnel, and
(c) the failure of prison authorities to confiscate the weapons many
inmates are known to possess. Also, "[t]he evidence is replete with
instances of inhumanities, illegal conduct and other indignitives vis-
(1969). See also D. Glaser, The Effectiveness of a Prison and Parole System 19-20
(1964); Goldman and Holt, How Justice Works: The People us. Donald Payne, Newsweek.
March 8, 1971, at 20; Metzner & Weil, Predicting Recidivism: Base-Rates for Massachu-
setts Correctional Institution Concord, 54 J. Crim. L.C. & P.S. 307-16 (1963).
"'Gates v. Collier, 349 F. Supp. 881, 887-92 (N.D. Miss. 1972).
1974] MISSISSIPPI'S EXPERIENCE 705
ited by inmates who exercise authority over their fellow prisoners."
6. Armed inmate trusties, selected without objective criteria or
uniform standards and insufficiently trained to cope with their duties,
perform the primary guard function at Parchman. Besides abusing
their authority and engaging in loan-sharking, extortion and other ille-
gal conduct, the trusties at Parchman have shot, maimed or otherwise
physically maltreated scores of inmates subject to their control.
7. Inmates at Parchman relegated to the punishment side of the
Maximum Security Unit have often been placed in the "dark hole"
without clothes, hygiene materials, or adequate food for periods of 48
to 72 hours. During such confinement the cell is not cleaned nor is the
inmate permitted to bathe.
8. Among the forms of physical brutality inflicted on inmates by
prison authorities are: beating; the forced administration of milk of
magnesia; stripping inmates of their clothes and turning fans on them
while naked and wet; depriving inmates of mattresses, hygiene materi-
als and food; handcuffing inmates to fences and cell bars for protracted
periods; shooting at inmates to compel them to maintain assumed
positions; and subjecting them to the cattle prod.
9. Inmates subject to disciplinary action for alleged violations of
prison rules are (a) not informed either orally or in writing of the
charges against them prior to interviews before the "trial council," (b)
denied the opportunity to present witnesses in their own behalf or to
cross-examine adverse witnesses, (c) charged on the basis of reports
prepared by prison personnel without first hand knowledge of the facts
involved, and (d) denied the assistance of a representative or the avail-
ability of a transcript. Punishments imposed have not been uniform
and in some instances have been meted out for conduct which is not a
violation of prison rules.
10. Censorship of prisoners' mail is commonplace; some camp
sergeants (often illiterate) delegate their censorship duties to their
wives.
C. An Analysis of the Decision — The Judgment
In an analysis of the Gates judgment, it is helpful to divide the
opinion into the four major constitutional claims currently employed to
attack prison conditions and practices. The following outline will serve
as a structure for a discussion of the Gates judgment:
1. Eighth Amendment — Cruel and Unusual Punishment
a. Corporal Punishment
b. Disciplinary Confinement
c. Deprivation of Basic Human Needs
(1) Medical Care
(2) Physical Facilities
706 MISSISSIPPI LAW JOURNAL [vol. 45
d. Protection of Inmates
(1) Classification and Assignment
(2) Elimination of Custodial Trusties
(3) Protection from Assault
2. Fourteenth Amendment — Due Process: Inmate Discipline
3. Fourteenth Amendment — Equal Protection: Racial Segregation
and Discrimination
4. First Amendment — Censorship of Mail
1. Eighth Amendment82— Cruel and Unusual Punishment
While the eighth amendment's proscription against cruel and unu-
sual punishment appears tailor-made for the protection of prisoners'
rights, it is only within the last decade that courts have begun interpret-
ing the amendment in a manner requiring a reevaluation of the present
concepts of penal conditions and practices.83
The force of the amendment, however, is not limited to the prohibi-
tion of only those atrocities that would have turned the stomachs of the
framers of the Constitution in the 18th century.84 This conclusion is
compelled by both authority and reason. "[I]t is a constitution we are
expounding,"85 and the Constitution "states or ought to state not rules
for the passing hour, but principles for an expanding future."86 Such a
S2U.S. Const, amend. VIII, which reads: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment inflicted."
The cruel and unusual punishment clause of the eighth amendment is made applica-
ble to the states through the due process clause of the fourteenth. Robinson v. California.
370 U.S. 660 (1962), so holds, and there can be little doubt that this Bill of Rights
guarantee, whose "basic concept ... is nothing less than the dignity of man," Trop v.
Dulles, 356 U.S. 86, 100 (1958) (plurality opinion of Chief Justice Warren), satisfies the
most restrictive test for adoption as a measure of due process. Its derivation from times
anterior to the Magna Carta (See Granucci, Nor Cruel and Unusual Punishments In-
flicted: The Original Meaning, 57 Calif. L. Rev. 839, 845-46 (1969)) through the Bill of
Rights of 1689 (1 Wm. & Mary, sess. 2, ch. 2, preamble, clause 10), amply establishes that
it is a " 'principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.'" Palko v. Connecticut, 302 U.S. 319. 325 (1937). quoting
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
nSee Note, Revival of the Eighth Amendment: Development of the Cruel-
Punishment Doctrine by the Supreme Court, 16 Stan. L. Rev. 996 (1964).
"Certainly the eighth amendment does bar those atrocities, but they mark only the
minimum content of its prohibition. This is what was meant in Wilkerson v. Utah, 99 U.S.
130, 136 (1879), by the observation that although the exact extent of the cruel and unusual
punishment clause is difficult to define, "it is safe to affirm that punishments of torture
. . . and all others in the same line of unnecessary cruelty, are forbidden." Wilkerson does
not suggest, as the Weems v. United States dissent seems to imply, that torture is the
outer limit of the amendment. Weems v. United States, 217 U.S. 349, 400-01 (1910)
(White, J. dissenting).
H5McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
*flB. Cardozo, The Nature of the Judicial Process 83 (1921). See also Robinson v.
1974] MISSISSIPPI'S EXPERIENCE 707
conception of evolving standards is firmly entrenched in constitutional
jurisprudence and in the eighth amendment in particular.
The constitutional test applied to the cruel and unusual punish-
ment clause of the eighth amendment has been expressed in at least
three different ways by courts assessing the validity of a particular type
of penal or institutional custom and practice. Under one view, the prac-
tice is constitutional unless it is of such a character as to shock the
general conscience of a civilized society or is intolerable to fundamental
fairness.87 The second test or analysis would find violative of the eighth
amendment any punishment greatly disproportionate to the offense. KS
The third view holds unconstitutional even a practice applied in a pur-
suit of legitimate penal aim if it extends beyond what is necessary to
achieve that goal.89 Today these three tests offer a general guideline for
the judiciary in determining the constitutionality of prison conditions
and practices.9"
California, 370 U.S. 660, 666 (1962) (referring to "the light of contemporary human knowl-
edge"); Jackson v. Bishop, 404 F.2d 571, 578-80 (8th Cir. 1968); Goss v. Bomar, 337 F.2d
341, 342-43 (6th Cir. 1964) (dictum). In Trop v. Dulles, 356 U.S. 86, 101 (1968), the Court
stated that the scope of the cruel and unusual punishment clause "is not static," and that
the "amendment must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society." (plurality opinion of Chief Justice Warren). As
early as 1910 the Court held that the clause is "progressive, and is not fastened to the
obsolete, but may acquire meaning as public opinion becomes enlightened by a humane
justice." Weems v. United States, 217 U.S. 349, 378 (1910).
x7In Wayne County Jail Inmates v. Wayne County Bd. of Comm'rs, No. C-173-217,
at 100 (Mich. Cir. Ct. 1971), the court concluded:
Confinement as barbarous as this must threaten the health of the prisoner.
Confinement as debased and degrading as this must, inevitably, erode the spirit
and undermine the sanity of even the strongest man. Confinement under such
conditions shocks the conscience. Its dehumanizing aspects are an affront to
civilized notions of rudimentary human decency. We cannot believe that such
confinement is a permissible exercise of governmental authority over a citizen
of a civilized society in the year 1971.
Id. at 100-01.
88Robinson v. California, 370 U.S. 660, 676 (1961); Weems v. United States, 217 U.S.
349, 366 (1910); O'Neil v. Vermont, 144 U.S. 323, 339-40 (1892) (dissenting opinion);
Fulwood v. Clemmer, 206 F. Supp. 370, 379 (D.D.C. 1962). The amendment's language
itself is based upon the concept of proportionality, forbidding excessive bail or fines.
In Sostre v. Rockefeller, 312 F. Supp. 863 (S.D.N.Y. 1970), modified sub. nom. Sostre
v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert, denied sub. nom. Sostre v. Oswald, 404
U.S. 1049, cert, denied, 405 U.S. 978 (1972), the district court found that, based on the
eighth amendment, the imposition of punitive segregation on the plaintiff for an indefinite
period was disproportionate to any infraction of prison rules committed.
S9Rudolph v. Alabama, 375 U.S. 889, 890-91 (1963) (Goldberg, J., dissenting from
denial of cert.); Anderson v. Nosser, 438 F. 2d 183, 191, 193 (5th Cir. 1971); Dearman v.
Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970); cf. Hancock v. Avery, 301 F. Supp. 786,
791 (M.D. Tenn. 1969).
90See, e.g., Sinclair v. Henderson, 435 F.2d 125 (5th Cir. 1970); Dearman v. Woodson,
708 MISSISSIPPI LAW JOURNAL [vol.45
Gates is a classic example of the ever-evolving interpretation of the
eighth amendment with expansion of its application in some areas and
a reluctance to expand in others.
In an attempt to analyze eighth amendment treatment in the Gates
decision, attention is focused first on the most primitive of disciplinary
forms, that of the actual infliction of physical force on a prisoner.
a. Corporal Punishment
As depicted in Gates, the systematic use of physical violence
against the prisoners at Parchman has been an officially condoned,
common practice limited only by the imagination of those in power.91
Stating that "[C]orporal punishment, especially when of such severity
as to offend contemporary concepts of decency and human dignity, is
violative of the Eighth Amendment,"92 the court enjoined all those pun-
ishments which it deemed to fall under this standard.93
429 F.2d 1288 (10th Cir. 1970); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Wright v.
McMann, 387 F.2d 519 (2d Cir. 1967); Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio
1971); Hamilton v. Schiro, 338 F. Supp. 1016 (E.D. La. 1970); Holt v. Sarver, 309 F. Supp.
362 (E.D. Ark. 1970), aff'd, 442 F.2d 204 (8th Cir. 1971) (Holt II); Hancock v. Avery, 301
F. Supp. 786 (M.D. Tenn. 1969); Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969) (Holt
I); Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1969), aff'd, 435 F.2d 1255 (3d Cir.
1971); Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966). See also Woolsey v. Beto.
450 F.2d 321 (5th Cir. 1971); Cunningham v. Wingo, 443 F.2d 195 (6th Cir. 1971); Dryer
v. Jalet, 349 F. Supp. 452 (S.D. Tex. 1972); Landman v. Royster, 333 F. Supp. 621 (E.D.
Va. 1971); Schmitt v. Crist, 333 F. Supp. 820 (E.D. Wis. 1971); Lollis v. New York State
Dept. of Social Services, 322 F. Supp. 473 (S.D.N.Y. 1970); Wright v. McMann, 321 F.
Supp. 127 (N.D.N.Y. 1970); Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970). aff'd.. 439
F.2d 146 (5th Cir. 1971); Jackson v. Hendrick, 40 U.S.L.W. 2710 (Phil. C.P., Pa. 1972);
Pingley v. Coiner, 186 S.E.2d 220 (W. Va. 1972).
9I349 F. Supp. at 890. Plaintiffs uncontested Proposed Findings of Fact, in the record
in Gates which formed part of the basis for the Court's findings, outlined specific names
of prison officials who had perpetuated physical punishment upon prisoners:
(a) Shootings by civilians and trusties upon prisoners:
44 documented incidents causing wounds or death. Estimates that 100 in-
mates were so wounded. At least 11 incidents resulted in death to the victim.
Gates v. Collier, No. GC 71-6-K (June 1972), Proposed Findings of Fact, at 45-52. paras.
25-56.
(b) Prisoners beaten or otherwise physically mistreated by, at the direction of
or with the acquiescence of civilian officials:
Sgt. Bagwell: 3 inmates
Sgt. Moody: 12 inmates
Sgt. Burchfield: 7 inmates
Sgt. Vanlandingham: 8 inmates
Sgt. Childs: 8 inmates
Gates v. Collier, No. GC 71-6-K (June 1972), Proposed Findings of Fact, at 140-45.
"Gates v. Collier, 349 F. Supp. 881, 895 (N.D. Miss. 1972) (emphasis added).
'■'•Id. at 900. For a list of the enjoined practices, see note 81 and accompanying text
supra (Findings of Fact number 8).
1974] MISSISSIPPI'S EXPERIENCE 709
The inherent weakness of such an order is readily apparent when
considered against the background of Parchman administrators' history
of summary and unconstitutional punishment of prisoners. In effect, the
court's ruling prohibits only those punishments specifically enumer-
ated, permitting all others that do not "offend present day concepts of
decency." This ruling only begs the initial constitutional question of
what is cruel and unusual punishment and ultimately permits the deter-
mination to be made by the prison authorities themselves. While the
ruling may be successful in eliminating the enumerated abuses, one can
reasonably expect new varieties of punishment to replace the old, thus
circumventing the purpose of the decision.
Plaintiffs sought an injunction against the use of the whip or lash
as a form of corporal punishment under any circumstances. Although
the court intimated that such corporal punishment as a disciplinary
measure was unconstitutional,94 it refused to issue the injunction on the
basis that such an order would require a three-judge court.95
The barbaric Mississippi statute which permits the use of the whip
or lash offends present day concepts of human dignity. Although the
court found that the lash had not been used at Parchman since 1965, 9fi
it failed to recognize that the threat of the use of the whip or lash is a
common tactic presently employed by the prison administration at
Parchman.
It is submitted that a three-judge court is not required for the
purposes of invalidating the statute. The rule established in Bailey v.
Patterson91 and its progeny obviates the requirement of a three-judge
court where the statute involved is obviously unconstitutional,98 and the
94349 F. Supp. at 895. The court cited Miss. Code Ann. § 7968 (1942) [Miss. Code
Ann. § 47-5-15 (1972)] which provides for up to seven "licks and lashes" upon approval
by the superintendent.
95A three-judge district court must be convened pursuant to Title 28 of the United
States Code, section 2281, whenever an injunction is sought against enforcement of a state
statute.
The general logic behind section 2281 is to prevent a single federal judge from frustrat-
ing a state's legislative policy. See generally Board of Regents v. New Left Educ. Project,
404 U.S. 541 (1972); Allen v. State Bd. of Elections, 393 U.S. 554 (1969); Ex parte Young,
209 U.S. 123 (1908); Raymond v. Chicago Union Traction Co., 207 U.S. 20 (1907); Phillips
v. United States, 312 U.S. 246 (1941); Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973)
(en banc); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Cm.
L. Rev. 1 (1964).
96Gates v. Collier, 349 F. Supp. 881, 895 (N.D. Miss. 1972).
97369U.S. 31 (1962).
"See, e.g., Goosby v. Osser, 409 U.S. 512, 518 (1973); Ex parte Poresky, 290 U.S. 30
(1933); Levering & Garrigues Co. v. Morrin, 289 U.S. 103 (1933); Hannis Distilling Co. v.
Mayor and City Council, 216 U.S. 285 (1910); Sands v. Wainwright, 491 F.2d 417 (5th Cir.
1973) (en banc); Kirkland v. Wallace, 403 F.2d 413 (1968); Utica Mut. Ins. Co. v. Vincent,
375 F.2d 129, 131 n.l (2d Cir.), cert, denied, 389 U.S. 839 (1967).
710 MISSISSIPPI LAW JOURNAL [vol.45
district court's broad conclusion that all corporal punishment is uncon-
stitutional which "offend[s] contemporary concepts of decency and
human dignity"99 would appear to make any claim that the "whipping
statute" is not unconstitutional a frivolous gesture; thus obviating the
need for a three-judge court. A detailed analysis in support of this asser-
tion is found in Jackson u. Bishop. m As set forth in Jackson, the federal
prison system and 48 states had entirely outlawed the practice of corpo-
ral punishment in the form of whipping or lashing. Indeed, a review of
the various model correctional standards reveals without exception an
express condemnation of any form of physical punishment as a discipli-
nary measure.101 Since in the Jackson case this form of corporal punish-
ment was ruled unconstitutional in Arkansas,102 Mississippi is the sole
remaining supporter of the whip and lash as a disciplinary tool.
The district court's refusal to render the "whipping statute" uncon-
stitutional is a glaring symbolic and substantive weakness in the Gates
decision.
9aGates v. Collier, 349 F. Supp. 881, 894 (N.D. Miss. 1972).
"m404 F.2d 571 (8th Cir. 1968). Justice Blackmun, then sitting on the Eighth Circuit
Court of Appeals, set forth the following reasons for the unconstitutionality of corporal
punishment in the form of whipping or lashing:
Our reasons for this conclusion include the following: (1) We are not convinced
that any rule or regulation as to the use of the strap, however seriously or
sincerely conceived and drawn, will successfully prevent abuse .... (6) There
can be no argument that excessive whipping or an inappropriate manner of
whipping or too great frequency of whipping or the use of studded or overlong
straps all constitute cruel and unusual punishment. But if whipping were to be
authorized, how does one, or any court ascertain the point which would distin-
guish the permissible from that which is cruel and unusual? (7) Corporal pun-
ishment generates hate toward the keepers who punish and toward the system
which permits it. It is degrading to the punisher and to the punished alike. It
frustrates correctional and rehabilitative goals. This record cries out with testi-
mony to this effect from the expert penologists, from the inmates and from their
keepers. (8) Whipping creates other penological problems and makes adjust-
ment to society more difficult. (9) Public opinion is obviously adverse.
Id. at 579-80.
""Standard Minimum Rules for the Treatment of Prisoners, Fourth United Na-
tions Congress on Prevention of Crime and Treatment of Offenders Rule 31 (1955,
reaffirmed 1970): "Corporal punishment . . . shall be completely prohibited as punish-
ments for disciplinary offences." Model Penal Code (1962) § 304.7(4): "No . . . corporal
punishment shall be used on any prisoner . . . ." National Council on Crime and Delin-
quency, Model Act for the Protection of Rights of Prisoners § 2(a) (1972): "Striking,
whipping, or otherwise imposing physical pain upon a prisoner as a measure of punish-
ment" is prohibited. American Correctional Association, Manual of Correctional
Standards ch. 15, Rule 4 (1966) [hereinafter cited as Manual of Correctional
Standards]: "[N]o corporal punishments shall be employed as correctional measures."
,n2Jackson v. Bishop, 404 F.2d 571, 575 (8th Cir. 1968).
1974] MISSISSIPPI'S EXPERIENCE 711
b. Disciplinary Confinement
Perhaps an even more drastic penalty than whipping or other physi-
cal punishment inflicted upon an inmate is segregated confinement.
Confinement to solitary, isolation, the "hole", maximum security, or
whatever term that may be used connotes a practice that is both
unquestionably dangerous to the prisoner as well as self-defeating in
terms of improving discipline.1"3 Unfortunately, courts have not recog-
nized that solitary confinement violates constitutional standards per
se,1"4 nor did the court in Gates make such a finding.
The courts since 1966 have, however, utilized the eighth amend-
ment as a constitutional basis for challenging disciplinary confine-
ment.105 Outrageous conditions of prison disciplinary cells styled after
""It has long been recognized that solitary confinement cannot be considered a mere
custodial matter. It can cause mental illness, mental deterioration, induce suicidal tend-
encies, and interfere with the possibilities of rehabilitation. Ex Parte Medley, 134 U.S.
160, 167-68 (1890); New York State Ass'n for Retarded Children v. Rockefeller, 357 F.
Supp. 752, 764-65 (E.D.N. Y. 1973). In La Reau v. MacDougall, 354 F. Supp. 1133 (D.
Conn. 1971), aff'd, 473 F.2d 974 (2d Cir. 1972), the Second Circuit ruled that solitary
confinement of a prisoner for 5 days was cruel and unusual punishment because it
threatened his sanity. In Inmates of Boys Training School v. Affleck, 346 F. Supp. 1354,
1365 (D.R.I. 1972), the court enjoined the use of cells closely resembling solitary cells even
though defendants had voluntarily closed those cells. See also Nelson v. Heyne, Civ. No.
72598 (S.D. Ind., June 15, 1972) (finding solitary confinement practices to be cruel and
unusual punishment).
In Wyatt v. Stickney, 344 F. Supp. 387, 400 (M.D. Ala. 1972), the court enjoined
defendants from placing mentally retarded persons in seclusion for even 1 minute.
For discussion of the harmful effects of isolation see, R. Barton, Institutional
Neurosis (2d ed. 1966); I. Belknap, Human Problems of State Mental Hospitals (1956);
E. Goffman, Asylums, (1961); Gralnick & Duncan, Mental Patients in Transition, in
Mental Patients in Transition (M. Greenblatt ed. 1961); D. Vaid, Dehumanization and
the Institutional Career (1966); J. Wing & S. Brown, Institutionalization and
Schizophrenia (1970); Comment, Solitary Confinement — Punishment within the Letter of
the Low, or Psychological Torture?, 1972 Wise. L. Rev. 223.
The American Correctional Association has formally recognized: "Perhaps we have
been too dependent on isolation or solitary confinement as the principal method of han-
dling the violators of institutional rules. Isolation may bring short-term conformity for
some, but brings increased disturbances and deeper-grained hostility to more." Manual
of Correctional Standards, supra note 101, at 413.
1,MBreeden v. Jackson, 457 F.2d 578 (4th Cir. 1972); Novak v. Beto, 453 F.2d 661, reh.
denied, 456 F.2d 1303 (5th Cir.), cert, denied, 409 U.S. 968 (1972); Adams v. Pate, 445
F.2d 105 (7th Cir. 1971); Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert, denied,
404 U.S. 1062 (1972); Courtney v. Bishop, 409 F.2d 1185 (8th Cir. 1969), cert, denied, 396
U.S. 915 (1969); Ford v. Board of Managers, 407 F.2d 937 (3d Cir. 1969); Kostal v. Tinsley,
337 F.2d 845 (10th Cir. 1964), cert, denied, 380 U.S. 985 (1965); Graham v. Willingham,
384 F.2d 367 (10th Cir. 1967); Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970); Roberts
v. Barbosa, 227 F. Supp. 20 (S.D. Cal. 1964).
,05Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966).
712 MISSISSIPPI LAW JOURNAL [vol.45
medieval dungeons have been declared unconstitutional, 1,,fi and the
eighth amendment has been broadened to prohibit not only a specific
disciplinary measure itself but also the totality of the prevailing circum-
stances of the confinement.107
The Gates court adopted this expanded approach and found there
to be cruel and unusual punishment when ''inmates have been deprived
of the basic elements of hygiene, or have been placed on a starvation
diet for indeterminate periods of time, or have been subjected to brutal
or dehumanizing practices in the course of their solitary confine-
ment."108 Establishing minimum standards for solitary confinement, the
court enjoined all disciplinary segregation or isolation including the
"dark hole" except under specified conditions providing for: (a) a mini-
mum diet of 2,000 calories per day; (b) proper clothing; (c) hygenic
supplies; (d) bedding equipment; and (e) proper sanitary conditions.109
A traditional method at Parchman for disciplinary confinement has
been the utilization of the "dark hole." The findings in Gates point out
that the "punishment side" of the Maximum Security Unit (MSU),110
contains both the standard solitary cells and several smaller cells known
as dark holes. These dark holes measure 6 feet by 6 feet "with no lights.
commode, sink or other furnishings. A hole in the concrete floor is lo-
cated in the middle of the cell and is approximately six inches in diame-
l0fiWright v. McMann, 387 F.2d 519 (2d Cir. 1967); Hancock v. Avery, 301 F. Supp.
786 (M.D. Tenn. 1969); Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969).
mE.g., Sinclair v. Henderson, 435 F.2d 125 (5th Cir. 1970); Courtney v. Bishop. 409
F.2d 1185 (8th Cir.), cert, denied, 396 U.S. 915 (1969); Wright v. McMann. 387 F.2d 519
(2d Cir. 1967); Hancock v. Avery, 301 F. Supp. 786 (M.D. Tenn. 1969).
,0XGates v. Collier, 349 F. Supp. 881, 894 (N.D. Miss. 1972).
mId. at 900.
""Within the Maximum Security Unit an inordinate amount of brutality was inflicted
by trusties and free-world officials on prisoners. This brutality can only be characterized
as retributive since prisoners are "locked down" and security is strict. Incidents included:
(1) Handcuffing of inmate Mathew Winters to the MSU bars, stripping him
naked, hosing him down with water and leaving him in his cell with no heat.
with windows open and a fan blowing on him.
Gates v. Collier, No. GC 71-6-K, United States Government Exhibit 690-16; Joint Trial
Plan, Item 116.
(2) Inmates were often kept in cells without mattresses, commodes or sinks.
Id. Transcript of Temporary Restraining Order Hearings, Oxford, March 10. 1971. at 5-8.
(3) Notorious "punishment side" cellblock where inmates had no mattresses
or personal possessions (writing paper, personal hygiene materials, etc.) and
received starvation diets of 500-700 calories per day for up to thirty days.
Id. United States Government Exhibit entitled "Disciplinary Reports" entered into the
record on May 11, 1972.
(4) Laxatives given routinely to inmates at MSU.
Id. Transcript of Temporary Restraining Order Hearings, Oxford, March 10. 1971. at 151-
52; Anderson v. Nosser, supra, note 52.
1974) MISSISSIPPI'S EXPERIENCE 713
ter that will flush to dispose of body wastes. A heavy metal door with
no windows closes the cell.""1 Aside from the physical description of the
hole itself, Gates recognized the common practice of confinement to
include "plac[ingl inmates in the dark hole naked, without any hy-
gienic materials, and often without adequate food.""2 The court further
recognized that while state statute restricts confinement in the dark
hole to 24 hours, inmates have often been confined up to 72 hours.1 1:|
During this time, "the cell is not cleaned, nor is the inmate permitted
to wash himself."1"
The three-judge court problem was raised again with respect to the
statute providing for a maximum of 24 hours of dark hole confinement."5
As with the issue of corporal punishment, the court ruled that an injunc-
tion of the statute required the special court. The court concluded,
however, that many of the practices attending the use of the dark hole
were unconstitutional and ruled that the same minimum standards es-
tablished for solitary confinement also be applied to the dark hole with
the added provision that no inmate be confined in the dark hole for over
24 hours.11"
While several cases have found a particular length of punitive con-
finement disproportionate to the offense committed,"7 not since Sostre
'"Gates v. Collier, 349 F. Supp. 881, 890 (N.D. Miss. 1972).
■«/d.
mId. Indeed, the United States, plaintiff-intervenors in Gates, submitted testimony
that prisoners were confined up to 30 days in the dark hole. Gates v. Collier, No. GC 71-
6-K, United States Government Exhibit No. 31. Deposition of Sgt. E.R. Moody, at 388.
'"349 F. Supp. at 890. Other shocking practices of the prison administration with
respect to the dark hole included:
(1) Prior to confinement, inmates' heads were shaved with sheep shears.
Gates v. Collier, No. GC 71-6-K, Testimony of former Superintendent Thomas D. Cook
at hearings held in Oxford, Mississippi, March 10-11, 1971, at R.333-34.
(2) Inmates were not fed while in the dark hole.
Id. Transcript of Temporary Restraining Order hearings, Oxford, March 10, 1971 at 86,
94.
(3) More than one inmate was confined in the dark hole at the same time.
Id. Transcript of T.R.O. hearings, Oxford, March 10-11, 1971, testimony of W. Holmes at
148-49; Deposition of E.R. Moody at 377.
"r,349 F. Supp. at 895. Court cited Miss. Code Ann. § 7968 (Supp. 1971) [Miss. Code
Ann. § 47-5-145 (1972)] which provides for up to 24 hours of confinement in the dark hole.
Ilfi349 F. Supp. at 900.
,,7f;.,i>'., Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (where the court held that
indefinite solitary confinement for the failure to sign a "safety sheet" before beginning
work in a prison shop was grossly disproportionate to the offense committed); Carothers
v. Follette, 314 F. Supp. 1014 (S.D.N.Y. 1970) (stating that 4 >/2 months of solitary confine-
ment for writing a letter to a judge criticizing prison personnel was unreasonable and
disproportionate). See also Robinson v. California, 370 U.S. 660, 676 (1961) (concurring
opinion); Fulwood v. Clemmer, 206 F. Supp. 370, 379 (D.D.C. 1962).
714 MISSISSIPPI LAW JOURNAL [vol.45
v. Rockefeller"* has a court attempted to place a specific period of time
on the permissible length of punitive segregation. In Sostre the district
court ruled that any confinement in punitive isolation exceeding 15 days
was cruel and unusual regardless of the offense committed."9 On appeal,
however, the Second Circuit rejected this holding, and no court since
Sostre v. Rockefeller has upheld a similar limitation in the penal con-
text.120
While it could be contended that the 24-hour limitation is merely
a restatement of state law, the court's legal analysis leaves no doubt that
this limitation is based upon constitutional considerations.121 As such,
Gates' limitation confinement in the dark hole to 24 hours is an unprece-
dented step in the area of judicial restriction of punitive segregation.122
The court prohibited confinement unless the cells are "adequately
heated, ventilated and maintained in a sanitary condition . . . ."123 As
the dark holes exist today, absent a commode and sink, they do not meet
these minimum sanitary conditions, and although their use has not been
enjoined, they can not be employed in a manner conforming with the
Gates standards. Therefore, their use has been tacitly prohibited.124 The
dark holes, however, are still used despite Gates, and thus an even
greater urgency exists for having the statutory authority for the dark
holes reviewed by a proper three-judge court.
Unmistakeably the dark holes at Parchman fall far short of minimal
constitutional requirements. The total absence of sanitation facilities
such as toilets and sinks, the total absence of light, the cramped size of
the cells, and the general unsanitary conditions combine to create an
environment entirely incapable of satisfying the dictates of the eighth
amendment. The prison administration at Parchman should have been
forever enjoined from utilizing the dark holes in Gates.
c. Deprivation of Basic Human Needs
(1) Medical Care
The difficulty courts have incurred in formulating tests to measure
eighth amendment violations is especially apparent in the area of medi-
,l8312 F. Supp. 863 (S.D.N. Y. 1970).
Hi>Id. at 868.
l20Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971).
mGates v. Collier, 349 F. Supp. 881, 894 (N.D. Miss. 1972). The court held "that
Parchman inmates have been subjected to constitutionally forbidden cruel and unusual
punishment when they have been confined in MSU's dark hole cells ... for longer than
24 hours continuously." Id.
i22See generally Comment, Punitive Segregation in State Prisons — The Need for Defi-
nite Time Limitations, 76 Dickinson L. Rev. 125 (1970).
l2iGates v. Collier, 349 F. Supp. 881, 900 (N.D. Miss. 1972).
l2,/d.
1974] MISSISSIPPI'S EXPERIENCE 715
cal treatment.125 In attempting to resolve the question of what is cruel
and unusual in the area of medical treatment some courts have distin-
guished between a total denial of medical treatment and mere improper
or inadequate medical treatment.128 Recently courts have articulated the
constitutional standards for medical treatment in terms of a prisoner's
right to reasonable and adequate care.127
Medical care within a penal institution is expensive. Because of this
expense plus the general indifference to human life at Parchman, Mis-
sissippi historically failed to offer inmates even the rudiments of mini-
mum medical attention until the order in Gates.12* The district court
l25Comment, Constitutional Limitations of Prisoners' Rights to Medical Treatment,
44 Miss. L.J. 525, 528 (1973).
l26Courts have traditionally held that mere improper or inadequate care is not a
constitutional deprivation; the action must constitute a total denial of care. See, e.g.,
Oaks v. Wainwright, 430 F.2d 241 (5th Cir. 1970); Cates v. Ciccone, 422 F.2d 926 (8th Cir.
1970); Coppinger v. Townsend, 398 F.2d 392 (10th Cir. 1968); Thompson v. Blackwell, 374
F.2d945 (5th Cir. 1967).
127 E.g., Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) ("deprivation of basic
elements of adequate medical treatment" held unconstitutional); Blanks v. Cunningham,
409 F.2d 220, 221 (4th Cir. 1969) (prisoners "entitled to reasonable medical care"); Ed-
wards v. Duncan, 355 F.2d 993 (4th Cir. 1966); Collins v. Schoonfield, 344 F. Supp. 257,
277 (D. Md. 1972) (inmate must be provided "reasonable medical assistance . . . includ-
ing a reasonable medical examination; access to sick call; treatment for special medical
problems; proper dental attention and adequate suicide prevention techniques"); Jones
v. Wittenberg, 330 F. Supp. 707, 718 (N.D. Ohio 1971), aff'd sub nom. Jones v. Metzger,
456 F.2d 854 (6th Cir. 1972) ("adequate" medical care ordered); Talley v. Stephens, 247
F. Supp. 683, 687 (E.D. Ark. 1965) (inmates entitled to demand "reasonable medical
attention for injuries and disabilities, at all reasonable times, and to . . . attendance at
sick calls at reasonable times"). In Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala.
1972) the court stated:
When practices within a prison system result in the deprivation of basic ele-
ments of adequate medical treatment, then such practices violate constitutional
guarantees and federal courts must act to provide relief.
Id. at 281 (emphasis added). One court defined the right to "adequate and reasonable"
care in this manner:
If the treatment or lack of treatment of a prisoner is such that it amounts to
indifference or intentional mistreatment, it violates the prisoner's constitutional
guarantees. When a state undertakes to imprison a person, thereby depriving
him largely of his ability to seek and find medical treatment, it is incumbent
upon the state to furnish at least a minimal amount of medical care for whatever
conditions plague the prisoner.
Sawyer v. Sigler, 320 F. Supp. 690, 696 (D. Neb. 1970), aff'd per curiam, 445 F.2d 818
(8th Cir. 1971) (emphasis added).
l2sThe court found that:
The medical staff and available facilities at Parchman fail to provide ade-
quate medical care for the inmate population, with the result that many inmates
have not received prompt or efficient medical examination, treatment or medi-
cation.
349 F. Supp. at 888.
716 MISSISSIPPI LAW JOURNAL [vol. 45
found that until the eve of the lawsuit only one physician was responsi-
ble for the medical care of 2,400 people;129 that the prison hospital was
inadequately equipped;130 that inmates with contagious diseases were
not isolated;131 and that the prison administration regularly punished
inmates who sought medical assistance but were subsequently found not
to be sufficiently ill.132
Based upon these findings, the court concluded:
We hold that confinement of inmates at Parchman in barracks
unfit for human habitation and in conditions that threaten their physi-
cal health and safety by reason of gross deficiencies in plant and equip-
ment and lack of adequate medical staff and facilities, is impermissi-
ble. Not only are the inmates thus deprived of their constitutionally
protected right to adequate provision for their physical health and well-
being, they are denied proper care, treatment and feeding (Miss. Code
§ 7930), wholesome food prepared under sanitary conditions (§ 7942)
and efficient hospital and medical services (§ 7959) required by state
law. The deprivation of basic human needs for housing, food and medi-
cal care is not merely unnecessarily cruel and unusual, but is calculated
to retard, if not prevent, the process of a prisoner's rehabilitation.133
The court's conclusion that prisoners have a "constitutionally pro-
tected right to adequate provision for their physical health and well-
being" is apparently the first time any court has judicially articulated
such a constitutional standard in a prison context. The emergence of
such a right to well-being and physical health leads naturally to an
evolving eighth amendment theory of lack of rehabilitation as cruel and
unusual punishment.134
The United States Government's expert medical witness, Dr. Robert Brutshe, Chief
Medical Officer of the Federal Bureau of Prisons, testified that the hygiene and sanitary
conditions at the camps and the hospital are shocking. Gates v. Collier, No. GC 71-6-K,
Government's Proposed Trial Plan, Synopsis of Dr. Brutshe's Testimony at 5-8, entered
into the record in May, 1972.
mId. See Gates v. Collier, No. GC 71-6-K, Deposition of Dr. H. Abril, February 8.
1972, at 15. Compare this with the American Correctional Association standards requiring
one doctor per 500 inmates.
,30Gates v. Collier, 349 F. Supp. 881, 888 (N.D. Miss. 1972).
mId.
mId.
mId. at 894. The Gates court could have applied the standards of Newman v. Ala-
bama, 349 F. Supp. 278 (M.D. Ala. 1972), and found denial of medical care in itself
unconstitutional. Instead, Judge Keady preferred to group medical treatment with other
conditions of confinement and view the totality of conditions as violative of the eighth
amendment as was done in Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442
F.2d 304 (8th Cir. 1971).
mA discussion of the constitutional right to rehabilitation or treatment is beyond the
scope of this article. See generally Dodson v. Cameron, 383 F.2d 519 (D.C. Cir. 1967);
1974] MISSISSIPPI'S EXPERIENCE 111
In mandating relief in Gates, the court required additional medical
personnel including at least three full-time physicians, two full-time
dentists, two full-time trained physician's assistants, six full-time
nurses certified as R.N. or L.P.N., one medical records librarian, and
two medical-clerical personnel.135 The court further ordered the defen-
dants to take steps necessary to bring the hospital and equipment into
compliance with state licensing requirements, and "to comply with gen-
eral standards of the American Correctional Association relating to
medical services for prisoners."1'"
Notwithstanding the rather extensive and comprehensive relief,
acute problems in the delivery of medical care are still very much in
existence today. The prison hospital, because of its barbarous condi-
tions, remains unaccredited and unlicensed by the State of Missis-
sippi.137
The prison administration's failure to bring the hospital into com-
pliance with the licensing requirements of the State Hospital Associa-
tion and American Correctional Association standards should result in
its termination as a medical facility. I3H
(2) Physical Facilities
[H]ousing units at Parchman are unfit for human habitation under
any modern concept of decency.139
Davey v. Sullivan, 354 F. Supp. 1320 (M.D. Ala. 1973); Inmates of Boys' Training School
v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972); Wyatt v. Stickney, 344 F. Supp. 387 (M.D.
Ala. 1972); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972); Taylor v. Sterrett, 344
F. Supp. 411, 420 (N.D. Tex. 1972) ("Rehabilitation must be the overriding goal of our
correctional institutions. Unless society subordinates all of the correctional purposes to the
goal of rehabilitation, it faces the paradox of promoting the production rather than the
reduction of crime."); Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442 F.2d
304 (8th Cir. 1971); Wilson v. Kelley, 294 F. Supp. 1005, 1012-13 (N.D. Ga.), aff'd mem.,
393 U.S. 266 (1968).
The American Correctional Association states that the prison's "basic purpose" is
"the rehabilitation of those sent there by society." Manual of Correctional Standards
of the American Correctional Association 421.
'"Gates v. Collier, 349 F. Supp. 881, 901 (N.D. Miss. 1972). While similar staffing
ratios were ordered in Wryatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) (attacking
mental hospitals in Alabama), Gates is the first extension of that type of relief in the penal
context. See also Hamilton v. Landrieu, 351 F. Supp. 549 (E.D. La. 1972); Newman v.
Alabama, 349 F. Supp. 278 (M.D. Ala. 1972); Jones v. Wittenberg, 330 F. Supp. 707 (N.D.
Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972).
13BGates v. Collier, 349 F. Supp. 881, 901 (N.D. Miss. 1972).
'"Gates v. Collier, No. GC 71-6-K, Deposition of Dr. James Warrington, April 25,
1973, at 36-39.
i:!*Compare the requirement of construction of a new medical facility in Martarella v.
Kelley, 359 F. Supp. 478 (S.D.N.Y. 1973); Hamilton v. Landrieu, 351 F. Supp. 549 (E.D.
La. 1972).
l:i9349 F. Supp. at 887.
718 MISSISSIPPI LAW JOURNAL [vol. 45
In the past, deplorable physical facilities at a prison — although a
cause of dismay to inmates — were seldom deemed a problem of constitu-
tional dimension. Courts retained the premise that a facility may be old,
overcrowded, unattractive, and not particularly suited to its purposes
of confinement, but that these deprivations were not unconstitutional.
The first successful attack on a prison's physical facilities in its
entirety was in Holt v. Saruer. 14° With conditions remarkably similar to
those that exist at Parchman, Holt held the entire Arkansas prison
system violative of the eighth amendment. The court based its conclu-
sions on the combined effects, among other factors, of barracks sleeping
arrangements, overcrowded and unsanitary cells, an unsanitary kitchen,
and total lack of sanitation.141
Conditions at the Arkansas prison system were not unique. Holt
was just the beginning of extended litigation that resulted in judicial
orders recognizing that improper facilities in correctional institutions do
indeed violate constitutional standards and that courts will require
drastic alterations in a penal institution's operations and facilities.142
The district court in Gates recognized the total deplorable state of
physical facilities at Parchman.143 Building facilities,144 lack of sanita-
l40309 F. Supp. 362 (E.D. Ark. 1970).
,uId. at 376-81.
mSee, e.g., Jones v. Wittenberg, 323 F. Supp. 93, 330 F. Supp. 707 (N.D. Ohio 1971);
Wayne County Jail Inmates v. Wayne County Bd. of Comm'rs, Civ. No. 173-217 (Mich.
Cir. Ct., May, 1971); Sprowal v. Hendrick, 438 Pa. 435, 265 A. 2d 348 (1970) (county jail
facilities in Philadelphia held cruel and unusual punishment for pretrial detainees).
For other cases in which federal courts have ordered state or county defendants to
reduce overcrowding; subdivide large dayroom areas; provide adequate personal hygiene
supplies, clothes, and linens; eliminate filth and insects; repair toilets, sinks, plumbing,
and broken equipment; provide evacuation plans and night lights and conduct fire drills;
serve warm, nourishing meals; eliminate odors and improve ventilation; provide regular
outdoor exercise; and, in general, correct the types of substandard living conditions de-
scribed in this section, see, e.g., Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972); Baker v.
Hamilton, 345 F. Supp. 345 (W.D. Ky. 1972); Hamilton v. Love, 328 F. Supp. 1182 (E.D.
Ark. 1971). But see Lake v. Lee, 329 F. Supp. 196 (S.D. Ala. 1971); Pingley v. Coiner, 186
S.E.2d 220 (W. Va. 1972) (conditions similar to those in the cases above were held
"unpleasant" but not unconstitutional). See also Note, Pretrial Detainment — The Jailer's
Duty to Provide Jail Inmates "Reasonable Protection" and Facilities Conforming to State
and Local Housing Codes, 18 Wayne St. L. Rev. 1601 (1972); Note, Cruel and Unusual
Punishment— Arkansas State Penitentiary System Violates the Eighth Amendment, 84
Harv. L. Rev. 456 (1970).
1,:i349 F. Supp. at 887-88.
»*Id.
The building facilities at most camps "are in a deplorable state of maintenance
and repair," as reported by the Mississippi Joint Legislative Committee Janu-
ary 4, 1971, and results in sub-human conditions. The electric wiring at a major-
ity of the units is frayed, exposed, and generally in a bad state of repair, present-
ing safety hazards to the inmates. Heating facilities are inadequate to heat the
1974] MISSISSIPPI'S EXPERIENCE 719
tion,145 poor water supply, ,4fi lack of hygenic facilities,147 and all other
living conditions provided for inmates were found to be "deplorable and
subhuman."148 Once again, this outrageous state of the prison can be
traced directly to the state's philosophy to operate the penitentiary on
a profit basis. Further, Gates carefully noted that public and official
apathy regarding the state of incarcerated prisoners was a contributing
cause of the deficiencies of the physical facilities at Parchman.149
In attempting to lay the groundwork to build a constitutional prison
for Mississippi, the court in Gates divided its attention between the
inhabited areas; many broken windows at the camps are stuffed with rags to
keep out the cold, wind and rain.
Id. at 887.
The facilities for housing, sheltering and caring for inmates at the great majority
of the camps are in severe need of maintenance and repair, if not replacement,
because the present conditions are hazardous to the health and safety of human
beings.
Id. at 888.
"■'Id. at 887.
Open sewage is a breeding ground for rats and other vermin. As recently re-
ported by the State Board of Health: "A new sewage system is the most pressing
environmental need now existing at the Penitentiary.'1 The entire waste disposal
system has been condemned by state health and pollution agencies.
u*Id. Poor water supply at Parchman was characterized as:
Water, contaminated as a result of the inadequate sewerage system, has caused
the spread of infectious diseases. At most camps the amount of water available
for drinking and sanitation is approximately half enough for inmate personnel.
As reported by the State Board of Health February 10, 1972: "The water supply
facilities at Mississippi State Penitentiary were found to be inadequate and
obsolete ... to protect the health of the inmates and employees at Mississippi
State Penitentiary. The need for a new water system is almost as great as the
need for a sewer system."
Id.
Id.
u7Id. at 887-88. The Gates description of the lack of hygienic facilities included:
Bathroom facilities for the inmates at the different camps for basic hygiene
are, as a rule, inadequate in number and poorly maintained. According to Mr.
Cook, the number and quality of operable commodes, showers, soap containers
and other hygienic necessities are inadequate at most camps. For example, at
Camp B, there are three wash basins for 80 men which consist of oil drums cut
in half. Kitchen facilities and food service are below par. By any standard of
decency, the physical facilities are woefully inadequate and far below minimal
requirements. Indeed, the photographic evidence depicts filthy bathrooms and
barracks, dead rats near the barracks, and mattresses, puchased second-hand,
which are old, dirty and in bad repair.
mId. at 888.
mId. The court stated: "Many of these gross deficiencies are of long standing and are
the result of public and official apathy and neglect for the fundamental needs of persons
incarcerated for crime."
720 MISSISSIPPI LAW JOURNAL [vol. 45
immediate need for interim building of facilities at Parchman and long-
range programs to renovate and reconstruct the prison.150
Interim or emergency measures to meet the human needs of prison-
ers were ordered by the court as specified by a consultant committee
which had studied Parchman's needs during the period of preparation
for trial.151 These improvements included the installation of improved
facilities, renovation of living quarters, employment of additional per-
sonnel, and purchasing of various supplies. Costs for the program were
budgeted at $1 million, all of which was paid by the Law Enforcement
Assistance Administration.152
The court additionally ordered the prison administration to prepare
and submit not later than December 20, 1972, a comprehensive plan of
long-range relief, in order to eliminate:
all unconstitutional conditions in inmate housing, inadequate inmate
housing, inadequate water, sewer and utilities, inadequate firefighting
equipment, inadequate hospital and other structures condemned by
this court in its Findings of Fact and Conclusions of Law.153
At the same time, defendants were instructed to submit detailed
progress reports on implementation of provisions for immediate relief.154
Rather than properly report on definitive actions taken and plans con-
ceived, the state merely sketched the areas mandated for consideration
in vague form, noting hopes and requests for funds and improvements
in the future.155
mId. at 898.
l6lId. at 892, 903.
K'2Id. at 892. The irony of the Law Enforcement Assistance Administration (LEAA)
contribution of $1 million to assist in building the prison is that LEAA is an arm of the
United States Department of Justice. Thus the plaintiff-intervenors in Gates, the United
States Government, helped to subsidize the defendant prison administration to imple-
ment relief which the court ordered.
mId. at 903.
'"See Gates v. Collier, No. GC 71-6-K, Defendants' Submission of Plans. December
20, 1972, Section VIII:
On classification of inmates: The classification and assignment of inmates shall
be racially non-discriminatory. ... In order to implement this system, the Law
Enforcement Assistance Administration has made available $40,000.00 in Part
E funds which will be matched by approximately $13,300.00 in State funds. The
Mississippi State Penitentiary has requested this matching allocation from the
Mississippi Capital Improvements Commission.
On medical facilities and services: In regard to upgrading medical facilities in
compliance with the Court Order, the Mississippi State Penitentiary has re-
quested of the State Capital Improvements Commission and the Budget Com-
mission budgetary provisions as follows: $150,000.00 for hospital repairs and
$40,000.00 for the purpose of hospital equipment and medical supplies.
1974] MISSISSIPPI'S EXPERIENCE 721
On February 2, 1973, penitentiary officials submitted the final long-
range plans, separating new and renovative construction of physical
facilities at Parchman into three phases.156 The 1973 legislature appro-
priated $3 million157 toward "Phase I" of the long-range reconstruction
which was matched by a second LEAA grant of $2.77 million. As noted
by the appointed federal monitor,158 in the process of transforming the
On inmate protection: Also a request has been made of the Budget Commission
to secure funds for the purchase of materials to subdivide the camps into smaller
segments in order to increase inmate protection.
On long-range relief: It is estimated: "that the development of a comprehensive
long-range plan for improvements at the Mississippi State Penitentiary, which
will conform to the study recommendation of the Court, will require approxi-
mately $50,000.00 in professional consultant costs. These funds will be derived
from existing and new federal state sources."
Id. at 20-28.
l5flGates v. Collier, No. GC 71-6-K, Defendant's Long-Range Plans submitted Feb. 1,
1973, at 7-9 (emphasis added).
1. "Phase I:" 1973-1974
— Authorize and appropriate funds for construction of new buildings and
remodeling of present camp buildings. Estimated 1973 appropriation needed for
remodeling in Camps, $1,000,000.
— Authorize and appropriate funds for new water system; cost, $450,000.
— Authorize and appropriate funds for new sewerage system; cost, $400,000.
— Authorize immediate but temporary improvement of present hospital
building; probable cost, $150,000.
— Authorize the first steps in upgrading of the farm operations; cost,
$703,000.
— Upgrade the electrical system; cost, $150,000.
— Install automatic telephone system; cost, $110,000.
—Repair roads; cost, $100,000.
— Acquire sufficient funds for architectural and other planning called for
in these recommendations.
— Construct Administrative Security Building.
— Construct new maximum and medium security units; cost, $1,600,000.
2. "Phase II:" 1974-1975
— Construct Central Food Service and Cold Storage Plant.
— Remodel Dairy Barn and Pasteurization Plant.
— Centralize radio communications system.
— Install natural gas heating system.
— Install emergency lighting system.
— Continue upgrading of farm operation.
3. "Phase III:" 1975-1976
— Construct new field house.
— Continue upgrading of farm operation.
l57Miss. Code Ann. § 47-5-5 (Supp. 1973).
15SAs a response to the plaintiffs' and plaintiff-intervenor United States government's
submission of evidence in July 1973, of massive beatings of inmates by Parchman civilian
guards, Judge William Ready on September 7, 1973, appointed a federal court prison
monitor charged with the duty of "[C] necking all phases of prison administration, man-
agement and operation to the extent he may deem necessary to determine sufficiency of
722 MISSISSIPPI LAW JOURNAL [vol.45
original plans into statutory law, certain priorities were reshuffled by
the state with unfortunate consequences.159 Particularly disturbing was
the overall failure by both the prison administration and the legislature
to consider rehabilitative rather than custodial needs a priority.160
Problems continue with the dilapidated and overcrowded inmate
living quarters,1"1 inadequate sewage disposal,182 insufficient provisions
compliance with the several provisions of this Court's order dated October 20, 1972."
Gates v. Collier, No. GC 71-6-K, Amended Order of Sept. 7, 1973, at 2.
The monitor filed four lengthy reports to the court regarding his observations and
comments on the defendant prison administration's implementation of the Gates order.
[References to the Federal Monitor's Reports cited hereinafter as Federal Monitor
Report] .
The appointment of a monitor to ensure penitentiary compliance with a judicial
decree is unusual. The court's authority for such an action is based upon Rule 53 of the
Federal Rules of Civil Procedure. Cases where monitors have been appointed to insure
compliance in institutional suits include In re Patterson, 253 U.S. 300 (1919) (auditor);
Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 15 (2d Cir. 1971);
Jackson v. Hendrick, No. 71-2437 (Philadelphia Ct. C.P., April 21, 1972); Wayne County
Jail Inmates v. Wayne County Bd. of Comm'rs, No. C-173-217 (Mich. Cir. Ct. 1971).
15HFor example:
(a) A completely new water system was of emergency priority in the prison adminis-
tration's long-range plans, Gates v. Collier, No. GC 71-6-K, Defendants' Long-Range
Plans submitted Feb. 1, 1973, at 7, but was shifted to Phase II by the legislature. See Miss.
Code Ann. § 47-5-5 (Supp. 1973).
Federal Monitor Report, Sept. 2, 1973, at 12: "Work is also being done
on the wells and pumps [as well as on sewerage]. They are hopeful but not sure
that pressure will be adequate when the work is complete. Certainly pressure
won't be adequate for fire protection."
Id. Dec. 15, 1973, at 2: "Central water and sewage systems are lacking.
Water pressure varies from location to location and in some areas, is insufficient
to meet the needs of the residents." (Basically, this means that the toilets at
some camps will not flush.)
Id. Oct. 4, 1973, at 16: "Some of the [new] commodes in place cannot be
used because of lack of water pressure and some still have not been connected
to sewage treatment plants."
(b) The prison administration also emphasized the immediate need for a new sewer-
age system. Gates v. Collier, No. GC 71-6-K, Defendants' Long-Range Plans submitted
Feb. 1, 1973, at 7. This, too, was lowered to second priority.
Federal Monitor Report, Oct. 4, 1973, at 10: "Raw sewage draining into
ditches was observed at two locations."
Id. Dec. 15, 1973, at 2: "A number of small sewage treatment plants [also]
were installed recently and the adequacy of these plants is questionable."
""'For example, in the long-range plans there are provisions for both a recreational
field house and for a new maximum security unit. The field house, 100 feet by 200 feet.
and capable of housing 200 to 300 spectators, has a projected cost of only $125,000 versus
a cost of $1 million for the security unit. Gates v. Collier, GC 71-6-K, Defendants' Long-
Range Plans submitted Feb. 1, 1973.
""Federal Monitor Report, Dec. 15, 1973, at 2:
Both the housing and other facilities are poorly maintained (there are a few
exceptions), many are sub-standard and generally sanitation is well below ac-
1974] MISSISSIPPI'S EXPERIENCE 723
for supplying healthy water and water pressure needed to meet the
needs of fire prevention,1153 and the dull and distasteful institutional
dietlfi4 which have plagued the prison throughout its existence. In view
of statements made by the federal monitor, it is questionable if the
defendants' long-range plans will be able to effectively correct any of the
problems ingrained in the Parchman system.165 Several bitterly disap-
pointing flaws in the long-range plans are indicated in the monitor's
reports. According to his professional, experienced observations, food
service may actually deteriorate rather than improve, lfifi and the con-
ceptable standards. Toilet facilities were inadequate and in deplorable condi-
tion.
The inmate quarters are overcrowded. Bedding is in poor condition and
often is dirty.
Id. at 12:
— Housing is inadequate. It is overcrowded and lacks adequate facilities for
rest, recreation, study, and stowage.
— In general, sanitation is poor in quarters, food services and other areas.
,fi2See notes 145 & 159 supra.
mSee notes 146 & 159 supra.
""Federal Monitor Report, Dec. 18, 1973, at 2:
Food service facilities are poor, both for the preparation and serving of
food .... Food is adequate in amount but lacks variety, is unattractive and
tasteless. Salads and fresh fruit are rarely served.
Ranges and ovens scarcely meet needs and some are in poor condition.
"5The breadth of the problems with the long-range planning cited by the monitor
supports this conclusion. Federal Monitor Report, Oct. 4, 1973, at 20-22:
Mississippi law hamstrings the efficient planning of correctional facilities
in that it specifies that housing units should be located one mile apart and in
no event may they be closer than two-fifths of a mile. In consequence, a large
fenced area enclosing about three sections of land is proposed.
From an operational point of view, the proposed plan has many weaknesses
and I question whether the State of Mississippi can afford the operational
costs. . . . The multitude of small, separate housing units alone would consume
a large amount of manpower. The wide separation of the numerous units will
require considerable manpower and much transportation for the movement of
inmates. . . . Constructing the new facilities in three phases will add to
costs. . . .
I recommend that the present plans be reconsidered. Neither the Peniten-
tiary Board nor the administration has been consulted as to the needs; rather,
the Building Commission has come to them telling them what they can have.
In my opinion, a total master plan should be developed, including professional
review, before construction starts. I would hope that much of the construction
could be performed by the inmates to provide useful work and training; however,
it is doubtful that this will occur as modular precast construction has been
specified.
""Federal Monitor Report, Dec. 15, 1973, at 14:
The layout of the physical plant with many detached and remote facilities
724 MISSISSIPPI LAW JOURNAL [vol. 45
struction of an additional Maximum Security Unit, already underway,
does not bode well for alteration of the prison's history.167
In summary, the emphasis of corrective measures intended by the
court to improve the living conditions and safety of Mississippi's prison
population remains deeply rooted in the principles of security, rather
than creative, human rehabilitation and treatment. Because of this re-
grettable misplacement of priorities, it would seem ingenuous at best to
predict an improvement in the physical facilities at Parchman as a
result of the Gates directives.
Within the ambit of the eighth amendment attack on physical facil-
ities, plaintiffs in Gates sought an extensive and definitive ruling as to
the quantity and quality of prisoners' diets at Parchman.168
The court recognized the problem:
Kitchen facilities and food service are below par .... [Inmates are
denied] wholesome food prepared under sanitary conditions .... The
deprivation of basic human needs for housing, food, and medical care
is not merely unnecessarily cruel and unusual, but it is calculated to
retard, if not prevent, the process of a prisoner's rehabilitation.169
Despite the factual background recognized by the court regarding
inadequate food provisions at Parchman, it omitted ordering any relief
in this regard,170 and unsatisfactory food remains a complaint of prison-
ers at Parchman today. The federal court has ignored demands for a
minimum and sufficient diet to meet daily nutritional needs. Such de-
mands certainly are not unwarranted; they are merely a reiteration of a
consumes excessive manpower for supervision and movements. Also it limits
access of many inmates to programs while requiring the utilization of an exces-
sive number of vehicles for limited transportation. In addition, the layout in-
creases food costs, and makes it difficult, if not impossible, to serve attractive,
palatable food.
mId. Oct. 30, 1973, at 19. The monitor concluded: "Finally, with reference to the
proposed plans, I will definitely state that a 192 man maximum security unit is not
needed . . . ."
'""Concern for adequate food and water is not novel or unique to Parchman prisoners.
For instance, part of the tragedy of the Attica disturbances in September 1971 surfaced
because of ignored demands for a proper diet. The Attica inmates' first demand was for
adequate food and water; the demand of November 15 was more specific: "Provide a
healthy diet, reduce the number of pork dishes, increase fresh fruit daily." Besharov &
Mueller, The Demands of The Inmates of Attica State Prison and The United Nations'
Standard Minimum Rules For the Treatment of Prisoners: A Comparison, 21 Buff. L.
Rev. 839 at 842 (1972).
Ifi9349 F. Supp. at 888, 894.
,7l>The court did order the "employment of additional personnel" for food service
specified by the Interim Committee's Report. Id. at 903. The court also prescribed a
minimum 2,000-calorie intake for inmates while confined at the Maximum Security Unit.
Id. at 900.
1974] MISSISSIPPI'S EXPERIENCE 725
basic constitutional right within the prison context.171
Most recently, the federal monitor added credence to the prisoners'
complaints regarding food quality. The monitor's report illustrates the
striking omission of the district court in failing to remedy this existing
unconstitutional condition:
I observed a noon meal at Camp 1 and it was the worst food I have
seen at the penitentiary. It was poorly cooked, gummy, unattractive
and consisted only of three vegetables, bread and beverage — milk is
plentiful. That same day all of the other camps visited had beef liver
in addition to the vegetables, but Camp 1 had not received a meat
ration. The poor preparation of the food was partly due to inadequate
equipment. The range at Camp 1 is worn out and may be dangerous to
use. There are two ovens but one is inoperable and even temperatures
cannot be maintained in the other. The camp sergeant stated that he
had reported the situation repeatedly but that no action had been
forthcoming.172
mCourts have recognized the constitutional claim that an inadequate diet within a
penal system is an eighth amendment deprivation. Jones v. Wittenberg, 330 F. Supp. 707
(N.D. Ohio 1971), aff'd sub nam. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) (ordering
prompt delivery of hot food, observance of minimum nutrition standards, and sanitary
preparation); Hamilton v. Schiro, 338 F. Supp. 1016 (1970), relief granted, Hamilton v.
Landrieu, 351 F. Supp. 549 (E.D. La. 1972) (ordering additional staff, delivery of hot food
in closed containers, and professional consultant); Holt v. Sarver, 309 F. Supp. 362 (E.D.
Ark. 1970), aff'd, 442 F.2d 304 (8th Cir. 1971) (ordering "sanitary and palatable" food
served).
See also United Nations Standard Minimum Rules for the Treatment of Prisoners
20(1) (1955) which provides:
Every prisoner shall be provided by the administration at the usual hours
with food of nutritional value adequate for health and strength, of wholesome
quality and well prepared and served.
Unfortunately, some courts in the past have permitted "limited" or "restricted"
diets. Ford v. Board of Managers, 407 F.2d 937 (3d Cir. 1969); Negrich v. Hohn, 379 F.2d
213 (3d Cir. 1967); Landman v. Peyton, 370 F.2d 135 (4th Cir. 1966); Belk v. Mitchell,
294 F. Supp. 800 (W.D. N.C. 1968); Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962).
More recently courts have ruled that such "limited" or starvation diets are unconstitu-
tional. Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970) (starvation for 50 V2 hours held
excessive punishment); Landman v. Royster, 333 F. Supp. 621, 647 (E.D. Va. 1971) (700
calorie bread and water diet ruled unconstitutional).
'"Federal Monitor Report, Oct. 4, 1973, at 17. See also id. Oct. 30, 1973, at 20-21,
where dietary problems were described thus:
I found the dietician to be knowledgeable and believe that he is doing a good
job under difficult circumstances. He pointed out how hard it is to serve good
food at so many locations with poor equipment and untrained inmate work-
ers. . . .
He plans his menus on a sound poundage basis but cannot always adhere
to dietetic principles. He complained that while he orders the foodstuffs to be
delivered, he has no control over what is actually furnished.
726 MISSISSIPPI LAW JOURNAL [vol. 45
The monitor's final report offers the following conclusions with re-
spect to the existing food situation at Parchman:
Food service facilities are poor, both for the preparation and serv-
ing of food. Ranges and ovens scarcely meet needs and some are in poor
condition. There are no dishwashers to properly sanitize trays and
utensils and functioning steam tables are a rarity. The inmates are
furnished only spoons and have difficulty in eating foods, such as
meats. Generally picnic type tables with attached benches are found
in the dining rooms and many of these are not clean. Kitchen floors are
not tiled, most are porous concrete and adequate sanitation is not
possible. Garbage is collected in open, rusty drums which are not steri-
lized when emptied. Food is adequate in amount but lacks variety, is
unattractive and tasteless. Salads and fresh fruits are rarely served.173
d. Protection of Inmates
In regard to inmate protection, the district court found three condi-
tions at Parchman which constituted violations of the eighth amend-
ment:
The defendants have subjected the inmate population at Parchman to
cruel and unusual punishment by [1] failing to provide adequate pro-
tection against physical assaults, abuses, indignities and cruelties of
other inmates, [2] by placing excessive numbers of inmates in bar-
racks without adequate classification or supervision, and [3] by as-
signing custodial responsibility to incompetent and untrained inmates
174
(1) Classification and Assignment
The heterogeneous composition of prisons,175 mandates classifica-
tion and separation of inmates according to the personality and psychol-
ogy of the individual as well as the nature, cause, and method of the
crime committed.176 This classification aids in the rehabilitation of in-
mates, greatly lessens the dangers of physical assault, and effects a
mId. Dec. 15, 1973, at 2.
I74349 F. Supp. at 894.
I75"0ne of the few agreed upon 'facts' in the field of corrections is that offenders are
not alike; that is, they differ from each other, not only in the form of their offense, but
also in the reasons for and the meaning of their crime." M. Warren, Classification of
Offenders as an Aid to Efficient Management and Effective Treatment 4 (1967).
l7BThe types of offenses have been broken down into six general groups: traffic offend-
ers; sex criminals; drunkards; criminals who commit a wide range of antisocial acts; those
who commit crimes against property; and those who commit crimes against persons.
Different treatment plans were recommended for each type. Id. at 19, citing W. McCord.
J. McCord, & I. Zola, Origins of Crime 185-86 (1969).
1974] MISSISSIPPI'S EXPERIENCE 727
cumulative amelioration by lessening tension and by restoring a certain
degree of trust among prisoners.177
Consistent with the state's history of operating its prisons for profit
and the corollary callous indifference to inmate welfare, it is not surpris-
ing that the penitentiary operated virtually without a classification sys-
tem until very recently.178
The Gates court found that there was "failure to properly classify
and assign inmates to barracks" with a resultant comingling of violent
and nonviolent inmates.179 The court indicated that the lack of proper
classification contributes to the widespread assaults. Classification,
however, has far more extensive effects than this.
I77ln Morris v. Travisono, 310 F. Supp. 857, 865 (D.R.I. 1970), the court stated:
Classification . . . contributes to a smoothly, efficiently-operated correctional
program by the pooling of all relevant information concerning the offender, by
divising [sic] a program for the individual based upon that information, and
by keeping that program realistically in line with the individual's require-
ments. . . .
The primary objective of classification as a systematic process is the devel-
opment and administration of an integrated and realistic program of treatment
for the individual.
l7KAt the time Gates was filed, B.C. Ruth had been Parchman's "Classification
Officer" for 14 years. Gates v. Collier, No. GC 71-6-K, Deposition of B.C. Ruth, September
22, 1971, at 3-5. Mr. Ruth's testimony clearly exposes the racist assignment of inmates:
Q: Are there facilities within the Women's Camp which are comparable
to the First Offender Camp, Maximum Security Unit, Multiple Offender Camp,
the trouble-maker camps that you have mentioned?
Are they separated by characteristics at all within that camp?
A: (Mr. Ruth): Nothing except the white girls sleep in a separate apart-
ment from the colored.
Q: No effort to keep a three-time loser who's a murderer separate from the
first offenders?
A: No, sir.
Id. at 63-64.
Regarding the rules or regulations that the classification officer based his decisions
upon:
Q: Do you have any rules or regulations in written form which serve as
your guidelines or criteria for assigning a particular inmate to a particular
camp?
A: (Mr. Ruth) No, no, we don't.
Q: Do you have any oral directives which serve as such guidelines?
A: (Mr. Ruth) We don't have any set rules or guidelines to go by at all
assigning these men.
Id. at 6-7.
The only overriding objectives or guidelines that the classification system followed
was to ensure that black inmates were classified to "black camps" and that white inmates
were classified to "white camps."
,79349 F. Supp. at 888.
728 MISSISSIPPI LAW JOURNAL [vol.45
Viewing the situation from the inmate's position, it is clear that the
classification he is given is a primary factor in determining many pract-
ical day-to-day aspects of his life within the institution. Among other
matters, it may dictate what section of the institution he will live in,
who his associates will be, what work assignment he will have, and
what privileges will be extended to him. In many systems classification
goes beyond these determinations to fundamental decisions about an
inmate's future, such as the character of the institution he will be
incarcerated in, and the probability of a favorable parole decision.180
The district court's prescription for a classification system for
Parchman is deficient in several areas. No strict guidelines were offered;
there is merely a suggestion of conformity with the standards of the
American Correctional Association.181 The procedural aspects of classifi-
cation, in order to be effective, are of necessity complex,182 and the
court's failure to act decisively183 in this area has lent itself to post-Gates
problems and further litigation involving the classification of inmates.
Absent meaningful standards or guidelines in Gates, the Classifica-
tion Committee in an effort to undo the effect of years of indifference
to classification at Parchman proceeded to reclassify all 2,000 inmates
1K0South Carolina Dept. of Corrections, The Emerging Rights of the Confined 174
(1972).
18l349 F. Supp. at 901-02:
CLASSIFICATION AND ASSIGNMENT OF INMATES
Defendants also shall, not later than December 20, 1972, file with the court
a proposed program for the classification and assignment of all inmates taking
into account special circumstances, viz:
(a) The necessity for the early desegregation of the penitentiary;
(b) The necessity of alterations and additions to existing facilities to pro-
vide adequate inmate protection;
(c) The interest of the penitentiary officials in implementing additional
honor camps.
Said program of classification and assignment shall be racially nondiscrimi-
natory, shall contemplate modern methods conforming generally with classifica-
tion standards of the American Correctional Association, and shall provide for
its full effectuation within 4 months from the date of the submission, but in no
event later than April 20, 1973; provided however, that the court may grant
reasonable extensions of time for good cause shown because of special exigen-
cies.
^Compare Morris v. Travisono, 310 F. Supp. 857, 865-75 (D.R.I. 1970). where the
court required that prison officials adopt administrative procedures which ensure safe-
guards and accountability in the classification process. Limited review was provided to
ensure reasonable, consistent procedures. See also J. Conrad, Crime and Its Correction
176-212 (1965); Jacob, Prison Discipline and Inmate Rights, 5 Harv. Civ. Rights-Civ. Lib.
L. Rev. 227, 229-30 (1970); East, Penal Classification, 35 J. Crim. L.C. & P.S. 93 (1944);
Comment, Administrative Fairness in Corrections, 1969 Wise. L. Rev. 587. 589-93.
'"The Mississippi Legislature has acted to establish the rudiments of a classification
system at Parchman. See Miss. Code Ann. §§ 47-5-99 to -103 (Supp. 1973).
1974] MISSISSIPPI'S EXPERIENCE 729
at the Penitentiary in a short 4 months. In fact 1,000 inmates were
classified within 8 working days.184 Such summary and inadequate treat-
ment of the classification process is the direct result of a myopic judicial
order which failed to establish proper classification guidelines.185
The recent decision of Leonard u. Mississippi State Probation and
Parole Boardm is further indication that the classification process after
the Gates decision is not functioning properly or even constitutionally.
Defendants included the superintendent, the penitentiary board,
the penitentiary itself, and the probation and parole board. This case
marks the first time that all agencies connected with the penitentiary
were successfully joined in one suit.
Prior to bringing suit, plaintiffs in Leonard were denied parole,
denied eligibility for work-release and classified or reclassified for camp
assignments and vocational and educational programs in whole or in
part on the basis of defective records which included reports based on
unconstitutional disciplinary measures. Defendants were ordered by the
court to reconsider each inmate for (a) parole, (b) work release, and (c)
classification where the records were used. Had the Classification Com-
mittee been given more definitive guidelines in Gates, including the
directive to refrain from utilizing pie-Gates disciplinary records, it
would not face the present task of reclassifying hundreds of inmates
pursuant to the Leonard decree. Moreover, had a more professional
committee been established, utilization of defective Gates records would
never have occurred.
(2) Elimination of Custodial Trusties
The use of trusties as armed guards at Parchman is yet another
facet of Mississippi's historic philosophy of prison-for-profit. Moreover,
the trusty system has not only served as a means to reduce expenditures
for civilian staffing but has also been used as a vehicle to maintain a
high degree of fear among the inmate population.187
The court found in Gates a record replete with instances of injuries
and abuses inflicted by inmates acting as armed guards and performing
other custodial duties at Parchman.
1S4Gates v. Collier, No. GC 71-6-K, Deposition of Larry Maddox, April 25, 1973, at
60-62.
185The federal monitor has acknowledged the failures and shortcomings of the classifi-
cation system. Federal Monitor Report, Oct. 30, 1973, at 14; id. Sept. 15, 1973, at 13;
id. Sept. 2, 1973, at 8.
,8fiNo. GC 73-46-S (N.D. Miss., Feb. 21, 1974).
'"The Interim Report concluded: "[S]ecurity and control of inmates are insured
through maintaining a high degree of fear within the inmate population." Interim Report,
supra note 65, at 2.
730 MISSISSIPPI LAW JOURNAL [vol. 45
Trusties have abused their position to engage in loan-sharking,
extortion and other illegal conduct in dealing with inmates subject to
their authority and control. The evidence indicates that the use of
trusties who exercise authority over fellow inmates has established in-
tolerable patterns of physical mistreatment. For example, during the
Cook administration 30 inmates received gunshot wounds, an addi-
tional 29 inmates were shot at, and 52 inmates physically beaten.188
Further, the court found that:
Payoffs, favoritism, extortion and participation in illegal activities
have influenced the process of recommending and selecting trusties; no
formal training program at [Parchman] exists for training trusties
. . . inmates have, on many occasions, suffered injuries and abuses as
a result of the failure to select, train, supervise, and maintain an ade-
quate custodial staff.189
Based on these findings the court ordered prison officials to end
within 60 days the use of trusties as armed guards in the fields and as
custodial officers in the Maximum Security Unit.190 Prison officials were
further ordered to prepare a plan for the termination of the use of trust-
ies and other designated classes of inmates191 as armed guards or in other
custodial capacities at the prison.192 Thus Gates abolished the trusty
system insofar as eliminating armed and custodial trusties.193 This por-
IKX349 F. Supp. at 889.
mId. The court found that many trusties had been convicted of violent crimes, and
that penitentiary records indicated "that of the armed trusties serving as of April 1, 1971,
35% had not been psychologically tested, 40% of those tested were found to be retarded,
and 71% of those tested were found to have personality disorders." Id.
mId. at 902-03.
mId. at 888-89. These classes of inmates are referred to as "hallboys," "cagebosses."
and "floorwalkers" who may or may not be trusties. Inmates designated as a "hallboy,"
"cageboss," or "floorwalker" police inmates and enforce discipline while inmates are
confined within the barracks or living quarters.
,92In addition to performing duties as field shooters, armed trusties were utilized to
guard the perimeters of the camps, to serve as "night shooters," to guard special work
details, apprehend escapees, and to transport prisoners within and without the confines
of Parchman. Id. at 889.
mGates, however, did not order the complete elimination of the trusty system as the
prison may continue to use trusties to perform certain noncustodial duties. The Missis-
sippi Legislature has adopted a plan which would phase out the current trusty system by
July 1, 1974. Miss. Code Ann. § 47-5-143 (1972).
The court's elimination of armed trusties and custodial trusties is in direct conflict
with Miss. Code Ann. § 47-5-143 (1972), which allows trusties to be used "to guard
inmates and to supervise prison work details." In reality, the district court enjoined a state
statute without resort to a three-judge court. Compare this portion of the ruling with the
district court's refusal to enjoin the "whipping and lashing" statute and "dark hole" due
to the three-judge court issue.
1974] MISSISSIPPI'S EXPERIENCE 731
tion of the order is consistent with the relatively few judicial decisions
in this area.194
Fortunately, unlike other areas of the Gates judgment, the court
has steadfastly ensured the complete implementation of its order with
respect to the abolition of armed and custodial trusties.
On July 18, 1973, prison officials petitioned the court to modify the
Gates order to expand the use of armed trusties on a temporary basis
at Parchman. The State's request was based upon "security problems"
within and outside the penitentiary.193 The district court denied the
request, stating that Mississippi had failed to utilize all of its resources
to "work itself out of the Parchman dilemma." The court concluded:
[F)n good conscience [the court could not reverse] the fundamen-
tal proposition that the state cannot imprison a person convicted of a
crime and place him under control of another person convicted of a
crime. Unless this court is reversed by a higher court, the trusty system
is gone forever in this State. m
(3) Protection from Assault
A person's right to be protected from assault and injury is a funda-
mental human right and should not be reduced as a consequence of one's
incarceration. To the extent that the state has deprived the prisoner of
his ability to protect himself from physical deprivations by assuming the
position of custodial control over the prisoner, and to the extent that the
state has taken away the prisoner's right to choose with whom he is to
,94The use of trusties as guards exists officially only in Arkansas, Louisiana, and
Mississippi. Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th
Cir. 1971). Many prisons utilize inmates in positions of authority, however, and their use
creates special problems. See, e.g., S. Fox, Analysis of Prison Disciplinary Problems in
Penology: A Realistic Approach 114-26 (C. Vedder & B. Kay 1969).
The most comprehensive judicial inquiry into a trusty system prior to Gates came in
Holt, where the Arkansas practice of delegating over 90 percent of the prison's functions
to trusties was declared unconstitutional. 309 F. Supp. at 382. The court ordered that all
trusties be brought under control of civilian employees and that trusties be "stripped of
their authority over the lives and living conditions of other convicts." Id. at 384.
In Sinclair v. Henderson, 435 F.2d 125 (5th Cir. 1970), the court permitted the contin-
ued use of trusties to perform limited nonsecurity functions on death row at the Louisiana
State Penitentiary. In Hamilton v. Love, 328 F. Supp. 1182 (E.D. Ark. 1971), the court
reduced the number but did not enjoin the use of trusties. However, the court noted that
"[t]he trusties, of course, have no weapons" and do not perform jailor or security func-
tions. Id. at 1195 n.5.
,95Gates v. Collier, No. GC 71-6-K, Prison Officials' "Motion to Modify", July 18,
1973.
On July 3, 1973, the court had permitted prison officials to reintroduce the use of 25
armed trusties for a 60-day period to be used as perimeter guards stationed at the various
camps at Parchman. Id. Order of July 3, 1973.
l9fiGates v. Collier, No. GC 71-6-K, Oral Order of August 15, 1973 (emphasis added).
732 MISSISSIPPI LAW JOURNAL [vol.45
live, where he is to live, and how he is to live, then to the same extent
that state must assume an obligation to ensure the inmate's continued
physical security.
Unfortunately our prisons have failed to do this. Whole human
beings who enter prison institutions leave as amputees, quadraplegics,
and victims of repeated rape — injuries from which they will never phy-
siologically or psychologically recover.197
Parchman's history is replete with the infliction of assaults by in-
mates and free world civilians upon inmates. In Gates, the court noted
that" at least 85 instances are revealed by the record where inmates have
been physically assaulted by other inmates. Twenty-seven of these as-
saults involved armed attacks in which an inmate was either stabbed,
cut or shot."19* Based upon these findings, the court, relying upon the
'"Recent publicity has even made the public aware of these conditions. The recently
released interim report of the LEAA sponsored National Advisory Commission on Crimi-
nal Justice Standards and Goals, Corrections 32 (1973), states:
Observers of correctional institutions agree that inmate attacks on one an-
other— often sexually motivated — are common place and facilitated by lack of
personal supervision or lack of concern on the part of supervisory personnel.
For documentation of the existence of personal dangers to inmates see Perez v. Turner,
462 F.2d 1056 (10th Cir. 1972) (description of seven sexual assaults during an 18-month
period in the Utah State Prison); Holt v. Sarver, 300 F. Supp. 825, 830-31 (E.D. Ark. 1969)
(description of attacks in dormitories in Arkansas prison); Davis, Sexual Assaults in the
Philadelphia Prison System and Sheriff's Vans, 6 Trans- Action 6 (1968); Hirschkop &
Milleman, The Unconstitutionality of Prison Life, 55 Va. L. Rev. 795 (1969); Sexual
Assaults and Forced Homosexual Relationships in Prison: Cruel and Unusual
Punishment, 36 Albany L. Rev. 428 (1972); Note, Prisoners' Rights: Personal Security,
42 Colo. L. Rev. 305 (1970).
For the special problem of prison officials when inmates request solitary confinement
because of fear of assaults, see Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972).
l98349 F. Supp. at 889. Plaintiffs' uncontested findings of fact reveal:
a) Potential damage claims arising out of inadequate measures to protect in-
mates from assaults and rape by other inmates:
79 named and documented incidents of stabbings, beatings, rapes, etc. (Page
22-31, Paragraph 13-84);
b) Potential damage claims for cruel and unusual treatment at Maximum
Security Unit:
35 named inmates beaten and maced. (Pages 100-109, Paragraphs 2-18). Not
specified: number of inmates suffering as a result of prolonged dark hole confine-
ment, laxatives, handcuffing to bars, starvation, diets, etc.
Gates v. Collier, No. GC 71-6-K, Plaintiffs' Proposed Findings of Facts, June 1972.
Plaintiff-intervenors, the United States Government submitted the following statis-
tics regarding inmate brutality, forming the basis of the Gates order:
a) Potential damage claims for shootings:
34 such claims; this includes only shootings when the inmate was hit by the
bullet or pellet. (Pages 40-68).
159 persons interviewed or giving statements to FBI or Justice concerning above.
b) Potential damage claims for other cruel and unusual treatment:
1974] MISSISSIPPI'S EXPERIENCE 733
eighth amendment,199 "enjoined and commanded" state prison officials
"to increase the protection of inmates from the assaults of fellow in-
mates" within 60 days. The court recognized that "adequate protection
to inmates" would require "the assignment of additional employees,"
and "substantial funds" to the problem. The court also recognized its
duty "to make certain that such steps are not only begun with reasona-
ble promptitude but are fully carried out."200
Other courts have recognized a "right to protection" founded upon
the 8th or 14th amendments within the prison context. Many of these
decisions are based, as in Gates, upon a totality of prison conditions
which contribute to and foster inmate assaults.201
56 laxatives, hanging from bars, torture, coke crate punishment, torn up mail,
etc. (Pages. 95-118).
59 interviews or statements.
c) Potential damage claims arising out of failure to protect inmates:
60 incidents
86 interviews.
(rates v. Collier, No. GC 71-6-K, United States Answer to Interrogatories, June 1972. See
also note 91 supra.
These statistics are understated in that they do not include murders of inmates such
as the celebrated case of the death of Danny Calhoun Bennett. See Gilmer v. State, 271
So. 2d 738 (Miss. 1973) (affirming murder conviction of J.C. Gilmer for death of Danny
Bennett); McLaurin v. State, 260 So. 2d 845 (Miss. 1972) (affirming murder conviction
of George McLaurin for death of Danny Bennett).
m"The defendants have subjected the inmate population at Parchman to cruel and
unusual punishment by failing to provide adequate protection against physical assaults,
abuses, indignities and cruelties of other inmates." 349 F. Supp. at 894.
mId, at 897. In order to eliminate inmate assaults, the court additionally ordered the
immediate reduction in the overcrowded barracks by temporary means; institution of a
system to reduce possession of weapons by inmates; assignment of three civilian guards
to each barrack during the night hours; prohibition of fighting and gambling; isolation of
violent inmates; and prompt reporting of inmate assault and other violence to the County
Prosecuting Attorney of Sunflower County. Id. at 902.
20lIn a Civil Rights Act case decided 80 years ago, the United States Supreme Court
ruled that federal prisoners have a constitutional right to be protected from "lawless
violence," "assault," and "bodily harm." Logan v. United States, 144 U.S. 263, 285 (1892).
That constitutional right did "not depend upon any of the amendments to the Constitu-
tion," but was a right inherent in the very concept of constitutional government. Id. at
294.
In Hamilton v. Love, 328 F. Supp. 1182, 1194 (E.D. Ark. 1971), the court ruled that
"minimally, a detainee ought to have the reasonable expectation that he would survive
his period of detainment with his life; that he would not be assaulted, abused or molested
during his detainment." Id. at 1196. The court indicated that in order to protect the lives
and safety of the detainees, the defendants would have to add additional personnel or
reduce the jail population.
In Holt v. Sarver, 309 F. Supp. 362, 382 (E.D. Ark. 1970), the court issued a declara-
tory judgment that the "conditions" in the Arkansas prison system amounted to "a cruel
and unusual punishment constitutionally prohibited." One of those conditions was wide-
spread assault and injury. In announcing "guidelines" for "minimum requirements" the
734 MISSISSIPPI LAW JOURNAL [vol.45
As conditions presently exist at Parchman — open dormitories, a
nascent classification system, limited physical security, myriad poten-
tial hiding places, untrained and ineffective civilian guards, the ready
availability of materials which can be converted into weapons, and the
remnants of a trusty system which pit inmate against inmate — assaults
by inmates and civilians upon other inmates will continue. The order
in Gates in the area of protection from assaults is of such a general
nature as to allow a large degree of circumvention. The history of penal
reform in Mississippi dictates a more detailed and complete order with
less allowance of administrative discretion and a stronger judicial con-
cern with enforcement of its judgment.
The right to protection from bodily harm may be enforced through
means other than broad class action Gates-type injunctive relief. Prison-
ers may bring actions for monetary damages based upon denial of their
constitutional right to protection. These lawsuits represent a mecha-
nism for prison reform as the prison administration faces the economic
consequences of continued fostering of inmate and prison civilian bru-
tality. This litigation is perhaps the only way to protect prisoners in
Mississippi.202
The expanded application of the eighth amendment includes the
awarding of damages as well as equitable and injunctive relief.203 Crucial
court said the defendants were "going to have to do more than they have done in the past
. . . about protecting inmates from violent assaults of whatever kind." Id. at 383-84.
See also Woodhaus v. Commonwealth, 487 F.2d 889 (4th Cir. 1973); Laaman v.
Hancock, 351 F. Supp. 1265 (D.N.H. 1972); Jones v. Wittenberg, 323 F. Supp. 93, 330 F.
Supp. 707 (N.D. Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972);
Cohen v. United States, 252 F. Supp. 679 (N.D. Ga. 1966).
mSee, e.g., Bogard v. Cook, Civ. No. GC 73-22-S (N.D. Miss.). On March 24. 1974.
the District Court overruled defendants' motions for dismissal and summary judgment.
A jury trial is scheduled for mid-summer 1974. In 1971, Bogard, a Parchman inmate, was
shot by trusties. In 1972, he was stabbed by a fellow inmate and left a paraplegic both as
a result of the stabbing and because of inadequate medical care. He sued under 42 U.S.C.
§ 1983 (1953) and also maintained state tort claims under pendent jurisdiction.
Some nine other prisoner damage actions have been filed in Federal District Court
in the Northern District of Mississippi and have been stayed pending disposition of the
Bogard case.
-"The Fifth Circuit recognized in Roberts v. Williams, 456 F.2d 819. 828 (5th Cir.).
cert, denied sub nom. Roberts v. Smith, 404 U.S. 866 (1971), that the standards for
measuring an eighth amendment claim do not depend upon the relief that is sought. The
court stated: "In forming a definition of 'cruel and unusual punishment' it should make
no difference whether the litigation before the court under § 1983 is brought for injunctive
or declaratory judgment or attempts to assess personal tort liability." Damages have been
awarded prisoners in several cases involving a continual infliction of harm: Sostre v.
McGinnis, 442 F.2d 178 (2d Cir. 1971) ($1,500 damage awarded for punitive segregation
of an inmate under conditions constituting cruel and unusual punishment); Wright v.
McMann, 387 F.2d 519 (2d Cir. 1967), remand on damages, 321 F. Supp. 127 (N.D.N.Y.
1970) ($9,000 damage award); Bracey v. Grenoble, 356 F. Supp. 673 (E.D. Pa. 1973)
1974] MISSISSIPPI'S EXPERIENCE 735
to such cases is the concept that prison officials are not only financially
liable for direct assaults upon inmates by prison employees as a tradi-
tional civil rights claim204 but that inmate assaults by other inmates can,
under certain circumstances, be a direct result of poor management or
indifference by prison administrators.205 Thus in either case — civilian
attack upon inmate or inmate attack upon inmate — prison officials will
be held financially responsible for their failure to protect those who
suffer injury.
The violation of the basic constitutional right to protection is not a
matter to be taken lightly, particularly where the conditions which cre-
ate the problem have existed for years and continue to affect hundreds
of prisoners within Parchman. While the district court in Gates has
moved to fill the vacuum created by the inaction of prison officials in
the State of Mississippi and has attempted to inject some significant
($2,500 damages awarded inmate who was beaten, stripped, and pushed down a flight of
stairs).
'204Financial liability of high echelon prison officials, including the superintendent, for
assaults by prison employees upon inmates is based on several theories. In Roberts v.
Williams, 456 F.2d 819, cert, denied, 404 U.S. 866 (1972), the superintendent of the Leflore
County Mississippi penal farm was held liable for injuries sustained by a juvenile prisoner
when the minor was shot in the face by the accidental discharge of a shotgun held by a
trusty guard. The superintendent's liability was predicated upon his negligence in failing
to adequately train and supervise the trusty guard as to handling firearms. See also
Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), modified on reh. en banc, 456 F.2d 835
(1972) (Parchman's superintendent not immune from damages for constitutional depriva-
tion of inmates or detainees). Mississippi law imposes a duty on a sheriff having custody
of a prisoner to exercise ordinary and necessary care for the preservation of his prisoner's
life and limb, and for a breach of this duty he is liable. Farmer v. State, 224 Miss. 96,
105, 79 So. 2d 528, 531 (1955). By state statute, the superintendent is vested with the
exclusive management and control of Parchman, including the treatment, care, and man-
agement of all prisoners. Miss. Code Ann. § 47-5-23(1972) (emphasis added). The Missis-
sippi Supreme Court has acknowledged the superintendent's exclusive control over the
prison system and its inmates. Morgan v. State, 236 So. 2d 741 (Miss. 1972). See also
Harris v. State, 118 N.J. Super. 384 (1972); City of Topeka v. Boutwekk, 35 P. 819, 822
(Kan. 1894); Restatement Second of Torts § 320 (1965).
2t,5In Roberts v. Williams, 456 F. 2d 819, cert, denied, 404 U.S. 866 (1972), the Fifth
Circuit held that cruel and unusual punishment may be based upon either specific intent
or negligence in prison management. Both criteria are satisfied when one of the following
circumstances is present: (a) "a conscious purpose to inflict suffering," (b) "the sustained
maintenance over a period of time of a needlessly hazardous condition," or (c) "a callous
indifference to [suffering] at the management level, in the sustained knowing mainte-
nance of bad practices and customs." Id. at 827; cf. Woodhaus v. Virginia, 487 F.2d 889,
889-90 (4th Cir. 1973) ("occasional, isolated attacks by one prisoner on another may not
constitute cruel and unusual punishment, [however,] confinement in a prison where
violence and terror reign is actionable" against the prison administration); Laaman v.
Hancock, 351 F. Supp. 1265 (E.D. Va. 1972). But see United States ex rel. Miller v.
Twomey, 479 F.2d 701 (7th Cir. 1973); Kish v. County of Milwaukee, 441 F.2d 901 (7th
Cir. 1971); Matthews v. Henderson, 354 F. Supp. 22 (M.D. La. 1973).
736 MISSISSIPPI LAW JOURNAL [vol. 45
changes into those prison practices and conditions found to be inade-
quate, the court has failed to articulate a final ultimatum. If Mississippi
cannot ensure the safety of its prisoners at Parchman, then it should not
be allowed to run a prison.
2. Fourteenth Amendment — Due Process: Inmate Discipline
The area of the greatest litigation in the law of corrections involves
the continuing dispute over what type of disciplinary measures may be
used in order to maintain prison discipline and security and what proce-
dures must accompany the imposition of these sanctions.206
Apart from procedural protections, the judiciary has recognized
that due process requires the promulgation of substantive rules of con-
duct with communication of these to the inmate population.207 The es-
tablishment of set rules and regulations offers fair warning to prisoners
of that conduct which risks severe disciplinary punishment.
The district court in Gates found that no rules and regulations had
ever been officially promulgated and communicated to inmates appris-
ing them of "what conduct can subject [them] to serious discipline,
what penalty [they] can expect and the procedure by which such deter-
mination will be made."208 The court enjoined the prison administration
from imposing any disciplinary punishment until comprehensive rules
and regulations governing inmate conduct were established.209
2(lflOn due process in prison disciplinary proceedings, see, e.g., Haines v. Kerner, 404
U.S. 519 (1972); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973):
Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973); Sostre v. McGinnis, 442 F.2d 178 (2d Cir.
1971); Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Castor v. Mitchell, 355 F. Supp. 123
(W.D.N.C. 1973); Gomes v. Travisono, 353 F. Supp. 457 (D.R.I. 1973); National Advisory
Commission on Criminal Justice Standards and Goals, Corrections, standard 212
(1973); S. Krantz, et al., Model Rules and Regulations on Prisoners' Rights and Res-
ponsibilities (1973) [hereinafter cited as Model Rules]; Milleman, Prison Disciplinary
Hearings and Procedural Due Process— The Requirement of a Full Administrative
Hearing, 31 Md. L. Rev. 27 (1971); Turner, Establishing the Rule of Law in Prisons: A
Manual for Prisoners' Right Litigation, 23 Stan. L. Rev. 473 (1971); 50 Texas L. Rev. 155
(1971). See also Sands v. Wainwright, 357 F. Supp. 1062 (M.D. Fla. 1973), vacated and
remanded, 491 F.2d 417 (5th Cir. 1973) (en banc); McDonnell v. Wolff, 342 F. Supp. 616
(D.C. Neb. 1973), cert, granted, 42 U.S.L.W. 3422 (Jan. 22, 1974); Nelson v. Heyne, 355
F. Supp. 451 (N.D. Ind. 1972); Landman v. Royster, 333 F. Supp. 621 (E.D. Va. 1971);
Clutchette v. Procunier, 328 F. Supp. 767 (N.D. Cal. 1971); Wright v. McMann, 321 F.
Supp. 127 (N.D.N.Y. 1970), rev'd in part, 460 F.2d 126 (2d Cir. 1971), cert, denied, 409
U.S. 885 (1972); Carothers v. Follette, 314 F. Supp. 1014 (S.D.N. Y. 1970); Morris v.
Travisono, 310 F. Supp. 857 (D.R.I. 1970).
wSee, e.g., Rhem v. McGrath, 320 F. Supp. 691 (S.D.N. Y. 1971); Landman v. Roys-
ter, 333 F. Supp. 621 (E.D. Va. 1971); Urbano v. McCockle, 334 F. Supp. 161 (D.N.J.
1971); Smoake v. Fritz, 320 F. Supp. 609 (S.D.N. Y. 1970).
aw349 F. Supp. at 895.
2mId. at 899.
1974] MISSISSIPPI'S EXPERIENCE 737
Not only must certain rules be in force and followed, but punish-
ment of an inmate may proceed only after a fair correctional disciplinary
hearing. It is in this context that the procedural requirements of the 14th
amendment due process clause ensure a constitutional hearing.
One of the most obvious shortcomings of the Gates order was its
ruling on the due process rights of a fair disciplinary hearing.210 In its
findings of fact, the district court in Gates found a total absence of
procedural safeguards at Parchman's discipline hearings.211
The court's order, however, requires only that: (a) an inmate may
not be punished except for conduct which violates an existing peniten-
tiary rule or regulation; (b) the inmate receive a written notice of the
charge against him at least 24 hours prior to the hearing; and (c) the
inmate be afforded an opportunity to appear before the hearing body
and respond to the charges.212 The order expressly rejects rights recog-
nized by other courts which are necessary to give an inmate a fair and
constitutional disciplinary hearing. These rejected safeguards include
availability of counsel or counsel substitute;213 the opportunity to cross-
2lnPlaintiff-inmates appealed that portion of the Gates judgment relating to inmate
discipline hearings to the Fifth Circuit on February 23, 1973. The prosecution of the appeal
was stayed pending the disposition of Sands v. Wainwright, 357 F. Supp. 1062 (M.D. Fla.
1973), vacated and remanded, 491 F.2d 417 (5th Cir. 1973) (en banc). In light of Sands, it
appears that plaintiffs' appeal is mooted, and they must now seek a three-judge court to
entertain the issues of disciplinary hearings. This was the only portion of the Gates order
appealed, as of this date, by plaintiff-inmates.
21l349 F. Supp. at 890-91.
mId. at 899. The court in addition noted that the person bringing the charge could
not serve on the disciplinary tribunal which conducts the hearing. The Gates decision
literally adopts verbatim the procedural safeguards ordered in Sinclair v. Henderson, 435
F.2d 125 (5th Cir. 1970). In Sinclair, Judge West ordered: a) the promulgation of rules
and regulations; b) written notice of charges; and c) a hearing affording the inmate the
opportunity to speak. Id. at 1129.
2nJohnson v. Avery, 393 U.S. 483 (1968), established the constitutional right of inmate
"writ-writers" to render legal assistance to fellow prisoners. For decisions recognizing right
to counsel-substitute at prison disciplinary hearings see Landman v. Royster, 333 F. Supp.
621, 653-54 (E.D. Va. 1971); Bundy v. Cannon, 328 F. Supp. 165, 176 (D. Md. 1971);
Clutchette v. Procunier, 328 F. Supp. 767, 783 (N.D. Cal. 1971); Sostre v. Rockefeller, 312
F. Supp. 863 (S.D.N.Y. 1970); Morris v. Travisono, 310 F. Supp. 857 (D.R.I. 1970).
The federal prisons allow an inmate charged with misconduct to have representation
by a staff employee. United States Bureau of Prisons, Policy Statement: Withholding,
Forfeiture, and Restriction of Good Time, No. 7400.6 (Dec. 1, 1966).
See also Gagnon v. Scarpelli, 411 U.S. 778 (May 14, 1973) (counsel required in appro-
priate cases at probation or parole revocation hearings); Goldberg v. Kelly, 397 U.S. 254
(1970) (counsel or counsel-substitute at welfare hearings); Mempa v. Rhay, 389 U.S. 128
(1967) (counsel or counsel-substitute at revocation of probation of deferred sentencing
hearing). In each of these cases, the Supreme Court authorized representation by counsel
at hearings involving a quantum of personal liberty arguably no greater than that at stake
in prison disciplinary proceedings. See also Model Rules, supra note 206, at 167-68.
738 MISSISSIPPI LAW JOURNAL [vol.45
examine accusers; the opportunity to present additional evidence;214 a
review procedure;215 and special provisions for prisoners accused of in-
prison felonies.216 Plaintiffs in Gates have had to turn to another court
2uThe right to confrontation, cross examination, and presentation of additonal evi-
dence is accepted as being appropriate and necessary "in almost every setting where
important decisions turn on questions of fact . . . ." Goldberg v. Kelly, 397 U.S. 254, 269
(1970). See, K. Davis, Administrative Law Text §§ 7.02, 7.05 (1959).
In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that parolees are entitled
to "minimum" standards of due process before parole may be revoked, and specified that
the following constituted such minimum requirements:
(a) written notice of the claimed violations of parole; (b) disclosure to the paro-
lee of evidence against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation); (e) a "neutral and detached" hearing body
such as a traditional parole board, members of which need not be judicial
officiers or lawyers; and (f) a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole.
408 U.S. at 489. Essentially the same safeguards were described as "rudimentary" to due
process in the Court's earlier decision in Goldberg v. Kelly, 397 U.S. 254 (1970). The
"minimum" safeguards of Morrissey and Goldberg should also be the minimum required
in prison disciplinary proceedings. But cf. United States ex rel Miller v. Twomey, 479 F.2d
701 (7th Cir. 1973).
The Morrissey and Goldberg rights should apply to prison discipline hearings due to
the potential "grievous loss" that the prisoner can incur at the hearing. See United States
ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973); National Advisory Commission-
on Criminal Justice Standards and Goals, Corrections standard 2.12 (1973) (requiring
all of the "minimum" due process safeguards as specified in Goldberg and Morrissey);
Model Rules, supra note 206, at 165-66; Brant, Prison Disciplinary Procedures: Creating
Rules, 21 Cleveland St. L. Rev. 83, 93 (1972); Jacob, Prison Discipline and Inmate Rights,
5 Harv. Civ. Rights— Civ. Lib. L. Rev. 227, 247 (1970).
215In Sands v. Wainwright, 357 F. Supp. 1062, 1090 (M.D. Fla. 1972) the district court
although not mandating appeal procedures stated that a "review [appeal] can certainly
result in a more considered exercise of power and in effect elimination of errors." See
Wright v. McMann, 321 F. Supp. 127, 145 (N.D.N.Y. 1970). See Model Rules, supra note
206, at 168-69.
21flWhile Gates provides for the reporting by the prison administration to the County
Prosecuting Attorney of Sunflower County of all cases of inmate assault or other violence,
349 F. Supp. at 902, the court failed to consider special cases in which prisoners are
accused of in-prison felonies. Many disciplinary offenses at Parchman also constitute
crimes. Disciplinary offenses for assaults of guards, possession of weapons, liquor, or drugs,
escape, etc. could result in criminal prosecutions. Courts have recognized and attempted
to resolve this problem which in reality is created by the effect of Miranda v. Arizona.
384 U.S. 436 (1966), on prison disciplinary proceedings where the prison violation consti-
tutes a felony. In Sands v. Wainwright, 357 F. Supp. 1062 (M.D. Fla. 1973), the district
court recognized the dilemma of the inmate: "[If] he remains silent [at the prison
discipline hearing] he sacrifices a valuable defense and risks a substantial and serious
punishment. If he speaks in his defense, he risks self-incrimination in a subsequent crimi-
nal prosecution." Id. at 1093. Sands resolved the dilemma by entitling the inmate to "use"
immunity in a subsequent criminal prosecution to the extent his statements at the prison
discipline hearing can not be used affirmatively against him.
1974] MISSISSIPPI'S EXPERIENCE 739
in order to ensure fairness in the prison disciplinary process,217 and the
loss endured by prisoners due to defective discipline hearings will result
in hundreds of rehearings where parole or work-release eligibility has
been denied and where inmates have been classified at Parchman based
on such hearings.
The court's rejection of the minimum judicially accepted proce-
dural rights at prison disciplinary hearings218 not only constitutes a de-
nial of 14th amendment rights as recognized by other courts but im-
pedes inmate rehabilitation. Only when an inmate believes he has
"gotten a fair shake" will he begin to confront his misconduct which in
turn leads to the recognition of the need for his behavioral change — a
process essential to rehabilitation.219
3. Fourteenth Amendment — Equal Protection: Racial Segregation
and Discrimination
As previously stated, Parchman has traditionally operated its
prison-plantation system on a racially segregated and discriminatory
basis. It was thus no surprise when the district court found complete
racial segregation and widespread discrimination in Gates:
Approximately twice the number of blacks are required to live in
the same amount of dormitory space as white inmates. Inmates are
assigned to the 12 major residential camps on the basis of race. Inmates
are assigned to work details according to race. Blacks have not been
afforded the same vocational opportunities as have the white in-
mates. . . . Black inmates in some instances have been subjected to
greater punishment or more severe discipline than have white inmates
In Clutchette v. Procunier, 328 F. Supp. 767 (E.D. Va. 1971), the court ruled that
when a disciplinary offense also constitutes a crime, the prisoner must be afforded counsel
along with other procedural safeguards. See also Collins v. Hancock, 354 F. Supp. 1253
(D.N.H. 1973); Colligan v. United States, 349 F. Supp. 1233 (E.D. Mich. 1972); Carter v.
McGinnis, 351 F. Supp. 787 (W.D.N.Y. 1972).
2,7Leonard v. Mississippi State Probation & Parole Bd., No. GC 73-46-S (N.D. Miss.,
Feb. 21, 1974). See text accompanying note 186 supra.
2,s349 F. Supp. at 893.
2l9The language of Justice Frankfurter is appropriate:
The validity and moral authority of a conclusion largely depend on the mode
by which it was reached. Secrecy is not congenial to truth-seeking and self-
righteousness gives too slender an assurance of Tightness. No better instrument
has been devised for arriving at truth than to give a person in jeopardy of serious
loss notice of the case against him and opportunity to meet it. Nor has a better
way been found for generating the feeling, so important to a popular govern-
ment, that justice has been done.
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 126, 171-72 (1951) (Frankfurter,
J., concurring) (emphasis added.).
The feeling that justice has been done is no less important to prisoners at Parchman.
740 MISSISSIPPI LAW JOURNAL [vol.45
for similar infractions of penitentiary rules.220
Racial segregation of inmates in their living facilities affects not only
their camp assignment but in turn results in segregation of work assign-
ments as well as educational, vocational, and rehabilitative programs.221
Based on these facts, the court ordered that a comprehensive deseg-
regation plan be drawn and submitted within 2 months of the decision
and implemented not later than 4 months after submission.222 Further,
all forms of racial discrimination were immediately and finally en-
joined.22,5
As late as 1967, it was noted that "racial discrimination in the
prisons enjoys a surprising and tenuous immunity from judicial inter-
vention."224 Courts up until that point,225 and in certain instances for
some time after, acceded to prison administrators' arguments that racial
integration would produce serious disciplinary problems.228 With the
demise of the "hands-off doctrine," however, there has been a "strong
inclination to intervene and order staff officials to take affirmative steps
22,,349 F. Supp. at 887. As of May, 1971, there were located within the existing 21 units
at Parchman 12 permanent units which housed the following numbers of inmates, listed
according to race:
Front Camp
First Offender's Camp
Camp B
Camp 1
Camp 2
Camp 4
Camp 5
Camp 6
Camp 8
Camp 10
Camp 11
Governor's Mansion
Gates v. Collier, No. GC-71-6-K, Stipulation No. 9, filed May 4, 1972.
22l"An inmate's classification determines his work duties, his living quarters, educa-
tional, vocational and other rehabilititive [sic] programs, and priveleges [sic] . . . ."
Leonard v. Mississippi State Probation & Parole Bd., No. GC 73-46-S, at 7 (N.D. Miss.,
Feb. 21, 1974). See also Miss. Code Ann. § 47-5-103 (Supp. 1973).
222349 F. Supp. at 900-01.
nHd.
224Note, The Problems of Penology: Prison Life and Prisoners ' Rights, 53 Iowa L. Rev.
671, 685 (1967).
mSee, e.g., Edwards v. Sard, 250 F. Supp. 977 (D.D.C 1966); Nichols v. McGee. 169
F. Supp. 721 (N.D. Cal.), appeal dismissed, 361 U.S. 6 (1959).
™See, e.g.,To\es v. Katzenbach, 385 F.2d 107 (9th Cir. 1967), vacated, 392 U.S. 1353
(1968). Contra, Montgomery v. Oakley Training School, 426 F.2d 269 (5th Cir. 1970);
Crum v. State Training School for Girls, 413 F.2d 1348 (5th Cir. 1969).
90 white
0 black
116 white
0 black
0 white
148 black
0 white
191 black
0 white
162 black
85 white
0 black
99 white
0 black
133 white
0 black
0 white
117 black
0 white
176 black
0 white
160 black
(approx.)
0 white
8 black
1974] MISSISSIPPI'S EXPERIENCE 741
to integrate prison facilities and programs . . ,"227 especially where the
policy's sole aim is to perpetuate racial separation. 22s In 1966, in the
landmark case of Washington v. Leem which struck down racial segrega-
tion in an Alahama prison, the court stated:
Since Brown v. Board of Education, 347 U.S. 483 (1954), and the
numerous cases implementing that decision, it is unmistakably clear
that racial discrimination by government authorities in the use of pub-
lic facilities cannot be tolerated.230
Based on a similar theory, the proposal by the Center for Criminal
Justice would allow racial separation only in "limited" instances where
"continued association would immediately imperil institutional order or
safety" and would be limited to the duration of the emergency.231 Bal-
anced against the interests of penal integration is the oft-noted fear of
racial violence.232 The burden of showing a likelihood of such violence is
on the prison officials, and even where such likelihood is shown, the
danger threatened must be of an extreme nature.233
227Model Rules, supra note 206, at 44. The commentary to the proposal points out
that the danger of conflagration is greatest in prison areas where interpersonal contact is
greatest — living quarters and dining halls, for example. The proposal stresses equality in
work assignments, housing, recreational and rehabilitative programs, and with respect to
any classification decision made about inmates.
22\Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968).
229263 F. Supp. 327 (M.D. Ala. 1966), aff'd, 390 U.S. 333 (1968).
™Id. at 331.
231Model Rules, supra note 206, at 44.
Not all prisoners desire integrated facilities. Several prisoners, both black and white,
sought to halt the integration order in Wilson v. Kelly, 294 F. Supp. 1005 (N.D. Ga.), aff'd
per curiam, 393 U.S. 266 (1968), and substitute instead a "freedom of choice plan." The
argument in support of this proposal was concern about prison violence. The court, in
Rentfrow v. Carter, 296 F. Supp. 301, 303 (N.D. Ga. 1968), rejected this proposal.
See also McClelland v. Sigler, 456 F.2d 1266 (8th Cir. 1972); Dixon v. Dixon, 218 F. Supp.
157 (E.D. Va. 1963).
mSee, e.g., Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966), aff'd., 390 U.S.
333 (1968).
™See Cooper v. Aaron, 358 U.S. 1 (1958); Bush v. Orleans Parish School Bd., 188 F.
Supp. 916 (E.D. La. 1960), aff'd, 365 U.S. 569 (1961) (per curiam); James v. Duckworth,
170 F. Supp. 342, 350-51 (E.D. Va. 1959) ("[T]he preservation of the public peace cannot
operate in such a manner as to cause constitutional rights to be sacrificed or yielded").
Cf. Jackson v. Godwin, 400 F.2d 529, 541 (5th Cir. 1968), in which the court stated:
In both the areas of racial classification and discrimination ... we have
pointed out that stringent standards are to be applied to governmental restric-
tions . . . and rigid scrutiny must be brought to bear on the justifications for
encroachments on such rights. The [government] must strongly show some
substantial and controlling interest which requires the subordination or limita-
tion of these important constitutional rights, and which justifies their infringe-
ment ....
742 MISSISSIPPI LAW JOURNAL [vol.45
Whereas prisoners were once deprived of almost all their constitu-
tional rights, the courts have moved decisively in the past decade to
ameliorate this condition so that today substantial rights are retained
by prisoners.234
It is beyond dispute that certain rights and privileges of citizenship
are withdrawn from prisoners, but it has never been held that upon
entering a prison one is entirely bereft of all of his civil rights and
forfeits every protection of the law.235
All of these rights are of the type which are of positive benefit to
the prisoners, such as free exercise of religion236 and right of access to
the courts.237 Why then did the courts see a need to integrate racially
the prisons even in the face of potential violence, or has this merely been
a constitutional reflex action with no thought as to effect?
The sociological ambit of Brown v. Board of Education™ concludes
that separation of the races has an inherently discriminatory effect.239
An analogy may be drawn between schools and prisons in this regard
since the desired result for both is to prepare a person to function well
in society.240 Because of the different disciplinary and psychological
problems, however, as well as the obvious age differential, this analogy
probably should not be extended too far. Rather, the simpler and more
persuasive rationale for prison integration is that the treatment and
facilities for black and white prisoners when separated have not been
equal.241
niSee generally Owens v. Brierley, 452 F.2d 640 (3d Cir. 1971); Hollen, Emerging
Prisoners' Rights, 33 Ohio St. L.J. 1 (1972); Note, The Problems of Modern Penology-
Prison Life and Prisoners' Rights, 53 Iowa L. Rev. 671 (1967); Note, Beyond the Ken of
the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 Yale
L.J. 506 (1963).
235Sewell v. Pegelow, 291 F.2d 196, 198 (4th Cir. 1961); See Siegal v. Ragen, 88 F.
Supp. 996 (N.D. 111. 1949), aff'd, 180 F.2d 785 (7th Cir.), cert, denied, 339 U.S. 990,
rehearing denied, 340 U.S. 847 (1950).
mE.g., Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967).
n7E.g., Cochran v. Kansas, 316 U.S. 255 (1942).
238347U.S. 483 (1954).
^The conclusions of Brown have been strongly questioned based on data compiled
by a Congressionally authorized study: Coleman, Equality of Educational Opportunity
(1966). See Bowles, Towards Equality of Educational Opportunity, 38 Harv. Educ. Rev.
89 (1968).
24nAlthough the problem of prison discipline does pose issues different from those
raised in the school situation, Brown v. Board of Education indicates that discrimination
on the basis of race is detrimental to the mental health and to the quality of education
of Negro school children. These problems are relevant to a penal theory oriented towards
rehabilitation of the convicted felon, who must be educated to accept his role in an
integrated society. Note, Beyond the Ken of the Courts, supra note 234, at 686.
mSee Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970), aff'd, 442 F.2d 304 (8th Cir.
1971).
1974] MISSISSIPPI'S EXPERIENCE 743
The district court in Gates ordered the immediate end to all forms
of racially discriminatory conduct by prison officials and a plan for
desegregation of the living quarters.242 As in other areas of the Gates
decision, the court's reliance upon recalcitrant prison administrators to
implement its order affords an opportunity for rather token and incom-
plete adoption of the Gates mandate. Approximately 1 year after the
Gates decision and an entire 8 months after full integration was to have
been achieved, the following housing units at Parchman remained segre-
gated:243
(Number of Inmates)
Black White
Camp B 85 1
Camp 5 1 66
Camp 6 88 1
Sunflower county
"Road gang" All black
The indifference of the prison administration to integrate fully
Parchman 1 year after being ordered is a direct product of the court's
reluctance to enforce to any extent its order.
It appears that Gates is the first successful attack on prison racial
hiring practices.244 Emphasizing the need to hire black prison personnel,
the district court ordered that in hiring new employees to compensate
for the elimination of trusty guards, the prison officials should make a
"special appeal to the black community for qualified persons."243 Prog-
ress of integrating the prison staff has been slow. As of October 1973 — a
full year after the Gates order — the black proportion of employees at
242349 F. Supp. at 900-01.
243Federal Monitor Report, Sept. 7, 1973 & Oct. 4, 1973.
244In Sostre v. Rockefeller, 312 F. Supp. 863, 877 (S.D.N.Y. 1970), the district court
held that a prisoner had standing to challenge racial discrimination in hiring of prison
personnel but that statistics showing racial imbalance were insufficient to infer discrimi-
nation. Initially courts held that prisoners did not have standing to attack discrimination
in employment of prison personnel. Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968).
But see the dissenting opinion, id. at 1013-15 (Shelton, J., dissenting), which relied upon
school desegregation cases that included school personnel in desegregation orders. The
rationale of the dissent was adopted in Montgomery v. Oakley Training School, 426 F.2d
269 (5th Cir. 1970), integrating the staff at a juvenile detention center.
245349 F. Supp. at 903.
24BAs of August 1973, the State Retirement System rolls listed 310 civilian employees
at the penitentiary, of which 264 are white and 56 black. All 446 employees at Parchman
between the periods of January 1, 1965 to May 21, 1971, including those who terminated
their employment, were white.
744 MISSISSIPPI LAW JOURNAL [vol. 45
Parchman rose from zero to 18 percent248 in a prison system which is 63
percent black.247
With an increase of salary, improved working conditions, and more
intensive recruiting, perhaps prison officials can increase the number of
black employees and thus begin to fulfill the mandate of Gates. As with
other dimensions of the order, however, absent more demanding require-
ments by the court to implement its judgment, full compliance as to
prison racial hiring practices may not take place.
4. First Amendment — Censorship of Mail
Prisons thrive on sensory deprivation, on manufacturing a total
environment. To the extent that mail communication will aid prisoners
to reach the outer world with their grievances and allow them any com-
munications material available, it will have succeeded in piercing the
isolated world of the prison.248 Letters to the courts, attorneys, public
officials, the press, family and friends are often the only means for
dispelling public ignorance about prison life. In light of the deplorable
living conditions and exploitative philosophy that characterize Parch-
man, it is not surprising that the weapon of censorship has so systemati-
cally been applied. The delegation of authority to censor mail is filtered
down from prison camp sergeants to their drivers,249 wives, trusties, and
other inmates.250 The absence of any clearly stated policy or uniformly
promulgated rules resulted in the Gates court finding that prisoners'
first and sixth251 amendment rights to be free from illegal censorship of
mail had been violated.252
247Federal Monitor Report, Sept. 2, 1973, at 6; Oct. 4, 1973, at 11-12. "On August
28, 1973, the total population of the penitentiary was 1,901, with 27 of this number housed
at places other than the Parchman-Lambert complex. Of this total, 1,211. or 63 percent.
were black, and 690, or 37 percent, were white." Id.
24XMail censorship in the area of prison litigation has traditionally been cast in a first
amendment setting. In the future, however, those cases may be tried as fourth amendment
violations based upon indiscriminate and unreasonable searches and seizures, see. e.g..
Palmigiano v. Travisono, 317 F. Supp. 776, 791-92 (D.R.I. 1970); or ninth amendment
violations as an invasion of privacy, cf. Eisenstadt v. Baird, 405 U.S. 438 (1972); Stanley
v. Georgia, 394 U.S. 557 (1969); Griswold v. Connecticut, 381 U.S. 479 (1965). For an
excellent discussion of the ninth amendment theory in a prison context, see Singer.
Privacy, Autonomy and Dignity In the Prison: A Preliminary Inquiry Concerning Consti-
tutional Aspects of the Degradation Process In Our Prisons, 21 Buffalo L. Rev. 669 (1972).
W9Gates v. Collier, No. GC 71-6-K, Deposition of Sgt. E.R. Moody, March 10-11. 1971.
250Gates v. Collier, 349 F. Supp. 881, 891 (N.D. Miss. 1972).
mId. at 896. The sixth amendment violation was based upon censorship and interfer-
ence with inmates' mail sent to their attorneys.
252The court in making its finding of such violation stated:
[A|ny prison regulation or practice which restricts the [first amendment]
right of free expression that a prisoner would have enjoyed if he had not been
imprisoned must be related both reasonably, . . . and necessarily, ... to the
1974] MISSISSIPPI'S EXPERIENCE 745
The court then ordered the enactment of a fairly complex system
of rules governing an inmate's right of correspondence. First, outgoing
mail to a specified group of persons,253 including court officials and the
inmate's attorney of record, can not be interfered with in any manner.254
Other outgoing mail can be opened and inspected to discover escape
plans or other violations of "the laws of the State of Mississippi or of
the United States,"255 but only if there exist reasonable grounds to sus-
pect such communications. All incoming mail from any source can be
opened and inspected "in the presence of the inmate addressee, when-
ever the prison officials have reasonable grounds to suspect escape at-
tempts or to discover drugs, weapons or other material expressly prohib-
ited by state or federal laws or by prison rules. "25fi The court's regula-
tions also allow "reasonable" limitations to be imposed as disciplinary
measures on mail not in the protected category.
The weakness of the court's injunction regarding mail censorship
lies in the decision to permit the same prison officials who had pre-
viously abused their censorship powers now to make the more sophisti-
cated decision to censor mail communication when "reasonable
grounds" exist. There is no assurance that the prison administration will
not continue to abuse its responsibility as readily as in the past. The
"reasonable grounds" requirement will become nothing but legal rheto-
ric— it creates the appearance and possibility of a right rather than
protecting an actual substantive right.
The logical alternative, as suggested by at least one legal writer,
advancement of some justifiable purpose of imprisonment. Carothers v. Fol-
lette, [314 F. Supp. 1014, 1024 (S.D.N.Y. 1970)].
Id. at 896 (citations omitted).
However, the propriety of a single federal district court judge to rule in matters of
mail censorship within a state prison is in doubt in light of Sands v. Wainwright, 491 F.2d
417 (5th Cir. 1973) (en banc). Sands indicates that those issues must be tried before a
three-judge panel pursuant to 28 U.S.C. § 2281 (1970).
253The complete list of specified groups of persons included:
(a) Officials of the federal, state and local courts;
(b) All federal officials including the President of the United States, any
senator or congressman, and officials of any United States agency or depart-
ment; all state officials including the Governor, members of the state Senate
and House of Representatives and officials of any state agency or department;
(c) All members and employees of the State Probation and Parole Board;
(d) The attorney of record of an inmate in any pending action, civil or
criminal, in any duly constituted local, state or federal court.
349. F. Supp. at 898.
™Id.
2Hd. at 899. On April 26, 1974, in an oral order from the bench, Judge Ready granted
defendants' request for supplemental relief and relaxed the previous order governing
outgoing mail.
256Id. (emphasis added).
746 MISSISSIPPI LAW JOURNAL [vol. 45
would be to require the prison officials to submit some proof of their
"reasonable grounds" to a court and thereby obtain court permission
before inspecting any correspondence.257
As noted in Gates, the main reasons given by prison officials for
censorship or regulation of correspondence to and from inmates are
"security, rehabilitation, or orderly prison administration . . . ."25H
"Security" is by far the strongest and least questioned argument pre-
sented by prison officials to support mail regulations. The distinctions
between incoming and outgoing mail and to a lesser degree between
general inmate correspondence and correspondence to and from inmates
and courts or the prisoner's attorney are made for security reasons.
As to outgoing mail, judges, attorneys, and other public officials are
not considered likely to participate in any escape plans proposed by the
prisoner and are therefore a minimal security risk, not sufficient to
justify the necessary impingement on constitutional protections which
censorship or inspection would entail.259 But why should the fact that
the inmate's correspondent is not an attorney or judge automatically
validate inspection of outgoing mail for escape plans, obscene language.
or extortion plots? A less drastic alternative would be to punish those
who would use the prison mail for illegal purposes in the same manner
as those who use the "free world" mails for felonious purposes— through
normal criminal prosecution under the postal regulations.260
There remains, however, the stricter scrutiny given incoming mail
to prevent drugs, weapons, or other contraband from reaching the in-
mates. Gates allows incoming packages to be opened when "reasonable
grounds" exist to suspect contraband. One method which has been sug-
gested to screen for drugs, weapons, and other "bulk" items is to allow
prison officials to flouroscope incoming mail.261 This would give prison
officials a reliable method of detecting contraband, while still protecting
the inmates' right to receive unopened mail, except when contraband
is found.
Is censorship needed at all? Gates would indicate that it is. How-
ever, several jurisdictions have totally abolished prison mail censor-
ship262 with no apparent harm to institutional operations.263
2:,7Singer, Censorship of Prisoners' Mail and the Constitution, 56 A. B.A.J. 1051, 1055
(1970).
258349 F. Supp. at 896.
m$ee, e.g., Marsh v. Moore, 325 F. Supp. 392, 395 (D. Mass. 1971).
260Model Rules, supra note 206, Rule IC, n.5; Singer, supra note 257, at 1051, 1054.
2filMarsh v. Moore, 325 F. Supp. 392, 395 (D. Mass. 1971).
n2See Schwartz, Prisoners' Rights: Some Hopes and Realities, Final Report of the
Annual Chief Justice Earl Warren Conference on Advocacy in the United States, A
Program for Prison Reform 51 (1972).
283National Resource Center on Correctional Law and Legal Services, Attacking
1974] MISSISSIPPI'S EXPERIENCE 747
III. Conclusion
A. The Failures of Gates v. Collier: Inmate Beatings of July 1973
The history of the defense of the Gates case is one of condonation
of lawlessness and general approval of contemptuous behavior. With the
exception of a few rare moments of inspiration, the eyes of the defen-
dants in Gates have never turned from cosmetic concerns to substantive
action; the emphasis has been on "how do we make our present policies
and practices appear to be in compliance with constitutional standards
in order to remove the yoke of scrutiny by the federal court" rather than
"how can we meet the immense task of toppling the age-old structure
of historic prejudice and exploitation that perpetuates our prison sys-
tem."264
Prison Mail Regulations 13 (unpublished paper).
Even the Association of State Correctional Administrators recently endorsed in prin-
ciple regulations which would virtually preclude all mail censorship, unless a clear and
present danger to institutional security could be established. H. Clements, The Emerging
Rights of the Confined 71 (S.C. Dep't of Corrections 1972). See also Model Rules, supra
note 206, Rules IC-1 to -4.
2tuIn a Memorandum Opinion, February 14, 1973, the court in Gates characterized the
defense of the case:
In the instant case, we have no difficulty in finding that defendants' actions
were unreasonable and obdurately obstinate. From commencement of the suit
on February 8, 1971 defendants staunchly denied the existence of unconstitu-
tional practices and conditions at Parchman. Defendants continued to adhere
to this position at several lengthy hearings of an interlocutory nature .... We
are convinced that only because of the overwhelming magnitude of evidence
gathered by plaintiffs' attorney . . . , did defendants in effect recognize the
futility of a full evidentiary hearing and submit the case on a virtually agreed
record.
[T]his suit was necessary only because of defendants' unreasonable refusal
to comply with accepted constitutional principles. We are further convinced
that the unnecessary delay, extraordinary efforts, and burdensome expenses
incurred incident to the resolution of this case were occasioned because of defen-
dants' maintenance of their defense in an obdurately obstinate manner.
Gates v. Collier, No. GC 71-6-K, Memorandum Opinion, Feb. 14, 1973 (emphasis added).
About the character of the defense, the United States Court of Appeals for the Fifth
Circuit had this to say:
Defendants have appealed from the judgment (Appeal No. 73-1023 before
this court). Having admitted to all the facts and conceding the constitutional
violations, defendants have nevertheless appealed from the judgment on the
ground that the complaint fails to state a recognized cause of action. Further-
more, defendants continually sought extensions and delays from compliance
with the District Court's orders. Defendants' submission of plans required by
the District Court's order have been found to be inadequate even after substan-
tial delays and defendants continue to delay and obstruct any improvement in
the conditions at Parchman.
Gates v. Collier, 489 F.2d 298, 300 (5th Cir. 1973).
748 MISSISSIPPI LAW JOURNAL [vol. 45
Perhaps there is no better illustration of how defiant attitudes of
prison officials coupled with the failure of the judiciary to insist upon
compliance of its court mandates can make a mockery of the rule of law
within a penitentiary than the beating incidents of July 1973. During
that month, a group of Parchman security officers, styling themselves
as a "roving security patrol," travelled from prison camp to prison camp
assaulting and beating scores of prisoners.265 The reason for the beatings,
as told to the prisoners by members of the "security force," was that
"Judge Keady has turned the prison back over to [the prison offi-
cials]."2fifi Not incidentally, many of the prisoners who were beaten had
actively participated in the prosecution of the Gates case, were plaintiffs
in other prisoner rights lawsuits, or were "writ-writers."267
Procedures were initiated by plaintiffs in Gates to hold prison offi-
cials in violation of the Gates court order for the systematic acts of
brutality,268 and an expedited evidentiary hearing was set for July 23,
2fi5Gates v. Collier, No. GC 71-6-K, Oral Ruling of the Court, Jan. 14, 1974, at 11-14.
2fifiGates v. Collier, No. GC 71-6-K, Affidavit of Gerald T. Hansom, July 20, 1973;
Affidavit of Marvin O. Harrington, July 20, 1973; Affidavit of Simmie Johnson, July 20,
1973; Ruling of the Court, January 14, 1974, at 13.
267For example, Walter Leonard, Jr., named plaintiff in Leonard v. Mississippi State
Probation & Parole Bd., No. GC 73-46-S (N.D. Miss., February 21, 1974) was beaten after
being verbally harassed for his participation in the suit and sustained 10 contusions on
his back and trauma in both hands. Gates v. Collier, No. GC 71-6-K, Affidavit of Eighty
Inmates from Camp 4, August 8, 1973, at 2.
26HProbably the first word to leak out of the prison about the brutality was an extraor-
dinary letter from 86 inmates of Camp Eleven to Judge Keady dated July 13, 1973, con-
taining a lucid description of beatings at the camp and subsequent attempts by a now
high-ranking penitentiary official to cover it up.
The 86 inmates who signed the letter stated the following:
Camp 11
Parchman, Ms.
July 13, 1973
Hon. Judge Wm. C. Keady
U.S. District Court
Federal Building
Greenville, Miss.
Dear Judge Keady:
In the past three days at least a dozen prisoners have been beaten by the
penitentiary security force in bold violation of your orders. We believe and pray
that this recrudescence of corporal punishment will merit your attention and
that you will act to insure that the court's orders will not be flaunted and our
lives further threatened.
Reports from the hospital indicate that abuses such as the three we describe
below have taken place all over the farm. Inmates from First Offenders Camp.
Camp 1, Camp 4, Camp 5, Camp 8 and Camp 11 have required medical treat-
ment there as a result of beatings by security personnel this week.
1974] MISSISSIPPI'S EXPERIENCE 749
1973, to view evidence of the beatings. Plaintiffs asked that the court
order the guards involved discharged; that a federal master be ap-
We write as victims of and/or eyewitnesses to the following: On Tuesday
night, July 10, five prisoners were transferred from Camp 5 to Camp 11. Shortly
after their arrival, security personnel took two of the five — William Bingham
(MSP #36070) and Ronald McNelis (#36843)— out of the gunmen cage and
assaulted them with their fists and nightsticks. (Camp ll's Sargeant, Gene Bell,
was not on the Penitentiary grounds.)
Thursday night, July 12, at about 9:10 p.m., ten to twelve security force
officers entered the Camp 11 hallway. Two or three approached the gunmen cage
door and ordered everyone onto their bed. Their order was complied with; one
officer then pointed to Mark Desmond Proietti (#36585), an inmate on his bed
nearest the cage door. He was ordered to take off the short pants he was wearing;
he responded, "Alright", and did as he was told, putting on a pair of long ones.
He was then ordered out of the cage and into the hall where, without either
provocation or explanation of any sort, he was attacked by five or six of the
security officers wielding all manner of weapons: slap jacks, night sticks, a 12
to 15'" bar and shotguns. Proietti was knocked to the floor by a combination of
blows to his head from these weapons.
Once on the floor, he was repeatedly kicked about his head and back; he
was asked if he knew how to say, "Yes sir". He answered, "Yes sir", and the
beating continued for another minute or so.
It ended only when the camp sergeant, Gene Bell, arrived and intervened:
He bodily pushed two of the assaulting officers from Proietti. As the others
backed away, he ordered all the security personnel outside (telling them that
he might lose his job but that he wouldn't allow the beating as long as he was
in charge of the camp).
He then took Polaroid pictures of Proietti's wounds, which included multi-
ple lacerations and abrasions about his back, arms and head. One of two head
wounds required stitches at the MSP hospital. He was taken there by Sgt. Bell
and treated by Dr. Sam — . The doctor also treated one of the security officers
for broken foot bones sustained in kicking Proietti.
There are rumors extent that as many as twenty inmates were beaten at
Camp 4 on Wednesday night. We'd rather not speculate as to what might have
happened here had not Sgt. Bell arrived when he did.
The following MSP security personnel were among those involved during
the events of July 12 described above: MSP Sergeants Childs (Camp 1), Slaugh-
ter (C-2), Burchfield (C-4), L.A. Johnson (C-8) and High (MSU); security offi-
cers Lt. Steed, Steve Johns, Slate, Ronnie Hudson, and Emmett Adams.
Finally, you should be aware of the (rumored) threats against the lives of
any inmate who speaks of MSP Security's nightriding.
Respectfully,
Inmates of Camp 11
Note: This is our second attempt to complete this petition. The first four
typed copies (in somewhat better form) were confiscated in a shakedown Satur-
day night by Lt. Mooney of MSP Security,
cc: L.C.C.R.U.L., 213 N. Farish St., Jackson, Ms. News Media
[Signatures of 82 inmates]
Gates v. Collier, No. GC 71-6-K, Letter from Inmates of Camp 11, July 13, 1973.
750 MISSISSIPPI LAW JOURNAL [vol. 45
pointed to administer the prison;269 that federal marshalls be employed
to protect prisoners; and that the court fine the defendants a nominal
sum to be paid to the injured inmates.270 Plaintiffs offered into evidence
affidavits from over 200 prisoners, a state senator, the prison physician,
a penitentiary board member, and six free-world guards, all in a thor-
oughly documentary form, to prove the plaintiffs allegations of wide-
spread "goon squad" beatings and recrimination. The defendants' ini-
tial reactions varied; defenses included: the charges were "exagger-
ated;"271 the injuries "could have been self-inflicted;"272 or there was "no
evidence;"273 and simply that there had been no brutality.274 The
defendants also alleged that the injuries to inmates resulted from their
attempts to escape or from their attempts to assault prison guards
and that the allegations were part of a "conspiracy" to discredit state
officials. The conspirators were identified as a camp sergeant, three
night-watchmen, a penitentiary board member, a state senator, and
others, all of whom had been plaintiffs' witnesses earlier in the week.275
After reviewing the evidence, the court took the matter of the al-
leged brutality under advisement but entered an interlocutory decree,
ordering that the state hire a qualified penologist as soon as possible278
and appointing the federal monitor to inspect the prison periodically for
problems of compliance with the court order and report his findings to
the court.277 In November, the United States Department of Justice, as
plaintiff-intervenor, requested that the court reopen the record for the
taking of additional evidence. The request was granted and on January
14, 1974, the court heard additional evidence.278 Private plaintiffs reiter-
ated their previous requests for relief. The United States reaffirmed its
position that unwarranted and widespread brutality had occurred and
urged the court to take action to preclude repetitions of the beatings.279
269Fed. R. Civ. P. 53.
210Gates v. Collier, No. GC 71-6-K, Application for Order to Show Cause, July 19,
1973, at 10-11.
"'Statement by Charles Riddell, Chairman of the Penitentiary Board. Delta Demo-
crat Times, July 23, 1973, at 26, col. 2.
272Statement by Corbet Patridge, Chairman of the state Senate Correction Commit-
tee. Id.
273Statement by Danny Thomas, Chief Security Officer at Parchman. Delta Democrat
Times, July 26, 1973, at 31, col. 3.
271Statement by Charles Riddell. Id. July 24, 1973, at 28, col. 1.
273Testimony of Charles Riddell, Chairman of the Penitentiary Board, and two prison
inmates in Gates v. Collier, No. GC 71-6-K, Contempt Hearings, July 23-27, 1973.
mId. Supplemental Order, Aug. 22, 1973.
mId. Order, Aug. 22, 1973; Supplemental Order, Aug. 28, 1973; and Amended Order,
Sept. 7, 1973. See note 158 supra.
27*Gates v. Collier, No. GC 71-6-K, Order, Dec. 7, 1973.
mId. Argument of Counsel (transcript), Jan. 14, 1974, at 3.
1974] MISSISSIPPI'S EXPERIENCE 751
Counsel for the United States argued:
[W]e have a fact situation before this Court that raises a textbook
example of the interplay of civil contempt in the sense of violation of
an outstanding order and that type of contemptuous behavior in the
presence of the Court that otherwise permits summary power of the
Court to be imposed. Because if these incidents occurred — and the
United States contends that they did — then affidavits have been filed
in this Court that are false, affidavits filed clearly with the intent to
obstruct justice and perjury was committed in this courtroom today,
also with the intent to obstruct justice.280
The United States then asked the court to invoke its contempt
powers and jail three particularly offending prison security officers281 to
induce their cooperation in naming "higher-ups" involved.
Ruling orally, the court couched its evidentiary findings on the
theory that prisoners, who may have been in violation of the prison rules
concerning personal grooming of the hair and beard, refused to comply
with orders of the "roving security patrol" to correct immediately the
violations, and there ensued violence in which "there were instances of
excessive force upon inmates . . . [sjome guards were guilty of brutal
acts when they thus undertook to inflict summary punishment upon an
inmate for being out of compliance with the haircut regulation."282 Fur-
ther, the court held that, "[the] incidents were, in large part, the result
of administrative ineptitude, a lack of direction, coordination and in-
structions to the roving security force as to their purposes and func-
tions."283
In spite of its findings that prison guards had beaten inmates, the
court declined to hold the defendants in contempt of court,284 stating as
m)Id. at 4.
2HIPlaintiffs contended that these three officers alone were responsible for over 50
beatings during the week of July 8-14, 1973. Id. at 6.
W2Id. Ruling of the Court, Jan. 14, 1973, at 13. Nowhere in its opinion did the court
recognize other possible motivational factors behind the beatings namely, racial antago-
nisms, recrimination for writing writs or other legal actions despite the fact that the
affidavits and testimony of both plaintiffs' and defendants' witnesses pointed to these
factors.
283M
2S4Use of the contempt power has been utilized by courts where plaintiffs have been
denied the protection and fruits of their judgment. See McComb v. Jacksonville Paper
Co., 336 U.S. 187 (1949); Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911); Lance
v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert, denied, 384 U.S. 929 (1966). See also Fed.
R. Civ. P. 70, which provides in part, "[I]f a judgment directs a party ... to perform
any . . . specific act and the party fails to comply within the time specified, the court
may direct the act to be done at the cost of the disobedient party by some other person
appointed by the court .... The court may also in proper cases adjudge the party in
contempt."
752 MISSISSIPPI LAW JOURNAL [vol.45
its reasons, the lack of repetitions of violence, the successful efforts of
the defendants in securing a qualified penologist to head the prison, and
the inequity of jailing the guards, since they are simply there to carry
out orders from above.285
B. Gates v. Collier: A Catalyst and Invitation to Legislative Action
Inmates at Parchman turned to the federal courts in order that their
constitutional rights be recognized, respected, and enforced at the peni-
tentiary. Prisoners presented their claims to the judiciary in the forum
of Gates v. Collier; this was necessary because Mississippi's legislature
and executives have consistently ignored unconstitutional conditions
and practices at Parchman. The Gates litigation also attempted to focus
public attention on the inadequacies of the state penitentiary and to set
in motion a train of legislative and administrative action to alter sub-
stantially the very character of the prison system. Litigation alone will
not change the course of inert and indifferent institutions. The behavior
of such institutions will change, if at all, only in response to strong and
coordinated pressures.
In attempting to build a constitutional prison system for the State
of Mississippi, the district court in Gates realized that the legislature
and executive office would, for the first time in Parchman's history,
have to play a major role in allocating resources and adopting programs
to insure minimum constitutional standards at the prison. Courts have
often issued orders "suggesting" expenditures and a reorganization of
government functions where necessary to protect fundamental rights. 2Sfi
In following these judicial precedents, the district court in Gates has
faced the dangerous prospect of confrontation with the legislature in
requiring financing and reorganization of the prison. As of this date, the
court has minimized the chance of conflict by framing Gates in a rather
cautious tone, seeking cooperation with the legislature. Five major areas
were outlined for legislative study and consideration in the court's order
of October 20, 1972:
(1) reduction of the inmate population at the Parchman com-
2x5Gates v. Collier, No. GC 71-6-K, Ruling of the Court, Jan. 14, 1974, at 16.
mSee, e.g., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) (order to reallocate funds
so as to provide decent jail conditions); Taylor v. Sterrett, 344 F. Supp. 411 (N.D. Tex.
1972) (mandating new prison facilities, programs, and procedures, despite the cost);
Wyatt v. Stickney, 344 F. Supp. 387, 344 F. Supp. 373 (M.D. Ala. 1972), orders enforcing
325 F. Supp. 751 (M.D. Ala. 1971), appeal docketed sub nom. Wyatt v. Adirholt, No. 72-
2637 (5th Cir., filed May 1, 1972) (financing and reorganization of Alabama's state mental
institutions); Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970) (requiring reorganization
of staff, alteration of physical plant, and introduction of some form of rehabilitation
program).
1974] MISSISSIPPI'S EXPERIENCE 753
plex by alternatives, such as halfway houses, work release programs,
and alternative facilities located elsewhere for non-violent inmates
and first offenders;
(2) programs for "maximum utilization of the penitentiary's
assets";
(3) construction of new housing units and renovation of old
physical structures deemed salvable;
(4) construction of desperately needed sanitation facilities;
(5) long overdue improvements in medical and health care.287
This article has documented the legislature's neglect in ensuring
the safety and improving conditions of prisoners at Parchman. The
legislature did illustrate a willingness and ability to effect some mean-
ingful correctional change in the form of its intense concern and reaction
to the incidents surrounding the death of Parchman inmate Danny Cal-
houn Bennett in 1971.2HK Two significant laws were enacted that year in
response to comprehensive reports submitted to the 1971 legislature: a
vague order directing the Mississippi Penitentiary Board to begin "lim-
ited centralization" of facilities at Parchman;289 and the elimination of
inmate trusties by July 1, 1974. 29()
2"349 F. Supp. at 903-04.
2sxGeneral Legislative Investigating Committee, Mississippi State Penitentiary 50
(1971).
The committee introduces its report on Danny Bennett's murder with two key general
comments on Parchman penitentiary:
Cruel and inhuman treatment of inmates by sadistic guards and trusties is
a fact well documented in our files. Beatings are inflicted regularly and deaths
occur from a variety of unnatural causes, most of which receive little or no
attention from the outside world.
The evils and atrocities made possible by the trusty system, which are so
well depicted in this report, will continue in full force and effect until the system
is changed.
Id.
The committee concluded: "That a double standard of justice applies to crimes
committed within the confines of the penitentiary and do not receive the same attention
by the authorities as do similar crimes committed outside the penitentiary." Id. at 62.
In a minority report filed by Senator Theodore Smith, the Senator carried these
conclusions further:
The sadistic beatings and other inhumane treatment meted out to inmates
at Parchman is a disgrace to humanity. It is unbelievable that such could
happen in a civilized country .... Parchman is not rehabilitating prisoners.
It is making hardened criminals out of the inmates.
Id. at 83.
2X9Miss. Code Ann. § 47-5-5 (1972), ordered the penitentiary board to centralize the
services, facilities, and security operations at Parchman, and to phase out the existing
agricultural camps coincident with the elimination of the trusty guard system. This was
to be done "as soon as practical."
2a,,Miss. Code Ann. § 47-5-143 (1972), ordered the elimination of the trusty guard
754 MISSISSIPPI LAW JOURNAL [vol.45
With the initiation of the Gates lawsuit on February 8, 1971 more
legislative action began to focus on the penitentiary. Two laws were
passed in 1972. 291 The first major legislative steps were taken after the
Gates order of October 1972 was rendered. Major areas of redress by the
1973 legislature included a detailed plan for the beginning of renovation
and construction needed to "facelift" the prison,292 the creation of a
classification committee,293 and the initiation of the state's first work-
release294 and drug rehabilitation programs.295
In the expert testimony of the district court's federal monitor vir-
tually every area affected by the spate of 1973 acts is sharply criti-
cized,296 indicating that these legislative programs are already falling far
short of their goals and what is necessary at Parchman.
Bills introduced in the 1974 legislative session again failed to meet
needs in important areas, particularly in providing new rehabilitative
services.297
system by July 1, 1974. Prior to that date, the superintendent may still use inmates in
custodial capacities. The board may eliminate the trusty system at a faster pace if in
keeping with intent of section 47-5-5.
See, however, the comments on the trusty system in General Legislative Investiga-
tive Committee, Mississippi State Penitenitary 50 (1971), to verify the weakness inherent
in the protracted deadline allowed for elimination of the trusty system.
29lMiss. Code Ann. § 47-5-3 (1972), cites, for the first time, a statement of purposes
for the penitentiary as: "the custody, punishment, confinement at hard labor, and refor-
mation" of felons at the location of the Parchman farm.
Miss. Code Ann. § 47-5-151 (1972) makes it mandatory that an autopsy be performed
and a written report filed whenever a prisoner is found dead on the Mississippi State
Penitentiary grounds. The law also makes it the state's duty to investigate the circumstan-
ces of the death if any questions are raised as to cause of death in the coroner's report on
the incident.
292Miss. Code Ann. § 47-5-5 (Supp. 1973), is a detailed proposal outlining the building
and equipping of new physical structures, as well as renovations of existing facilities, at
the Mississippi State Penitentiary.
293See note 183 supra.
294Miss. Code Ann. § 47-5-159 to -169 (Supp. 1973).
295Miss. Code Ann. § 47-5-136 (Supp. 1973).
2MSee Federal Monitor Report, Sept. 2, 1973; Oct. 4, 1973; Oct. 30, 1973; and Dec.
15, 1973. "From an operational point of view, the proposed plan has many weaknesses and
I question whether the state of Mississippi can afford the operational costs." Federal
Monitor Report, Oct, 4, 1973, at 21. "I recommend the present plans be reconsidered. In
my opinion, a total master plan should be developed, including professional review, before
construction starts." Id. at 22.
287It is interesting to note two bills introduced in the 1974 legislative session which died
in committee: (1) S.B. No. 1603, Mississippi Legislature 1974, would have established a
separately located first offenders' camp, with a separate superintendent for the camp; and
(2) S.B. No. 1678, Mississippi Legislature 1974, was meant to authorize the penitentiary
1974] MISSISSIPPI'S EXPERIENCE 755
In the unending struggle between security and treatment in Missis-
sippi, the former has remained dominant.298 Also, the profit motive con-
demned by the court in Gates is still evident. Lawlessness and human
degradation are not adventitious byproducts of past and present prac-
tices at Parchman. Rather, they are the result of the State of Missis-
sippi's long-standing policy of operating a prison on a profit which fo-
ments inequity and exploitation. Additionally, ubiquitous racism with
its many complex origins is a major contributing factor in the State's
emasculation of inmates.
Powerful forces must be utilized in order that a prison operating
under constitutional standards be built in Mississippi. The delicate
chemistry of these forces includes the federal judiciary, the state legisla-
ture and Governor, the United States Government, and strong public
demand, all of which must work in concert.
Based upon Mississippi's experience in other areas of recognizing
existing human rights (e.g., Mississippi's struggle with school desegre-
gation), one is justified in believing that the battle to enforce the Consti-
tution within the state prisons will face resistance and opposition. In the
final analysis, if minimum rights are not recognized and enforced at
Parchman, we all will suffer. For the prison indeed oppresses not just
those who are locked within its cages. It reaches out to every one of us.
board to establish regional correctional facilities and separate maximum, medium and
minimum security units. See Gates v. Collier, 349 F. Supp. 881, 903 (N.D. Miss. 1971).
298Although the 1973 legislature appropriated $875,000 for construction of a new maxi-
mum security unit, it has not yet given sufficient attention to the need to improve the
vocational training and work opportunities offered Parchman prisoners.
Miss. Code Ann. § 47-5-167 (Supp. 1973), authorized the penitentiary board to coop-
erate with private industry to develop work-release programs and particularly to begin
providing skilled vocational training, but the federal monitor noted in his report of Oct.
4, 1973: "There has been no significant change in utilization of the penitentiary's assets
since the order was issued. Officials comment casually about establishing industries but
I discern no planning or even study of this matter." Federal Monitor Report, Oct. 4,
1973, at 19.
In painful contrast, the monitor refers throughout this final report to the limited and
minimally diversified offerings in training and skills, id. Dec. 15, 1973, while stressing the
special need to make such programs available to men in the Maximum Security Unit:
Men in close confinement continue to have basic and derived human needs
and the state must provide means for satisfying these needs .... Since these
inmates are considered dangerous or potentially destructive, it is especially
important that they be involved in intensive, resocialization treatment.
Id. at 4.
Also, industries should be established to employ those who must remain in
a security environment. Unquestionably there is sufficient state market to sup-
port industries employing 500 inmates. However, the establishment of indus-
tries will meet with strong opposition and it will take a firm resolve and full
legislative and administrative support to accomplish this objective.
Id. at 16 (emphasis added).
PRISON ABOLITION OR DESTRUCTION IS A
MUST!
The following letter was written by a prisoner at Parchman Peniten-
tiary in Sunflower County, Mississippi. As an expression of opinion by
one most affected by efforts at reform and revitalization of America's
prisons, the letter is offered as a balance against idealism and optimism
about the future of penal institutions.
There is no such thing as Prison Reform, at least in its literal sense.
At the most, we will receive superficial treatment to a fundamental
problem that needs a very fundamental solution. The original concep-
tion of imprisonment was probably truly intended to reform "cor-
rupted" individuals. After 200 years of this system, however, we can see
that it has utterly failed in this respect and has surfaced to take on a
new form.
True enough, throughout history it has been a recognized right of
all societies to punish crime, but the prison system is a scheme America
created as the key modern technique for correction. This American con-
ception of rehabilitating an "anti social" person is to isolate him from
normal life. The true form has now been made manifest. Prisons are
simply a painful punitive process; a most severe form of corporal punish-
ment that the administrators have capitalized on for their own selfish
reasons.
I, Louis X (Holloway) #35073, a Black Prisoner of Parchman
plantation-prison in Sunflower County, Mississippi, charge the Admin-
istration of America with being exploiters and perpetrators of the crime
of genocidel Crime is the biggest business in America. The police offi-
cers, the jailers, the courts of lawyers and judges, the prison administra-
tors and prison guards (who sell contraband, positions, allow gambling,
prostitution) all base their very survival on the perpetuation of crime!
At Parchman plantation-prison, it has long been the established custom
to operate at a profit regardless of the cost. Therefore we prisoners are
not paid wages for our labor, forced to live at the merest subsistence
level, and denied the chance to direct our energies in any area that the
state cannot profit from.
The administrators are charged with committing genocide. Black
People are victimized into prisons (for political, religious or social rea-
sons) in numbers that are alarmingly unparalleled to their ratio in popu-
lation. Mississippi Blacks make up 40 percent of the population in the
state, 70 percent of the prison population, and the ratio is 10 to 1 in the
special units used for intense torture. Genocide is the deliberate and
systematic destruction of a racial, political, or cultural group. Genocide
is the mistreatment of such groups by organized groups, usually
757
758 MISSISSIPPI LAW JOURNAL [vol. 45
Governments. Genocide means any of the following acts committed with
the intent to destroy a people in whole or in part, such as (1) killing
members of the group; (2) causing serious bodily or mental harm to
members of the group; (3) deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in
part; or (4) imposing measures intended to prevent births within the
group. All of these measures fit the Black Man's condition here on
Parchman plantation-prison.
Thus you have "White Time" and "Black Time." The white
prisoner has never been denied equal opportunities in America. The
white prisoner is given equal justice under the law, and except for a few
rare cases chooses to commit a crime. The Black Prisoner has never been
a free moral agent in this case. His very efforts to get food, decent
housing, his so-called inalienable rights, are a crime! Therefore any
institution designed to isolate these men will not solve the problem.
There exists no adequate definition as to what makes a criminal. Viola-
tions of the law are done sometimes out of mental illness, out of necess-
ity of survival, spontaneous anger, lust, ignorance, or by accident. One
thing is for sure: there is never a "born criminal"! There is no category
as to what precisely makes one violate a law, therefore, reform efforts
toward prisoners will fail for the very same reason violators are made
outside the prison; i.e., this wicked system's teachings, attitudes, and
actions work against creating healthy minds.
Even if all forms of racism and inhumanity could be eliminated
from the prison systems, the problems would only be half solved. It is
against the very nature of Man to be confined from normal activities,
grouped together with other men, and denied the association of women.
Such a system will always breed hatred, animosity, resentment, frustra-
tion, inferiority complexes, homosexuality, and general inhumanity to
man. Where these energies will be directed is another issue, but they will
be present; the prison will always be a powder keg.
Even if prisons could be cleaned up and improved, this would still
not compensate for the injustice done to the victims, nor would this
guarantee that there would be no future victims. What about the women
and children who are rape victims? What about families who have a
loved one seriously injured or maybe murdered? Or what about the
substantial property damage done because of burglaries, etc.? Who pays
for the injuries, the loss of time from work, and the mental damage done
to the victims and their families? The prison systems are paid for by
these victims who pay the enforced taxes. Black people are forced to pay
taxes in order that genocide may be perpetuated. How then can the
prison system take remedial and provisional measures when its very
existence stands self-evident that the problems still exist?
Let's face the facts. There is no definite way society can go about
1974] PRISON ABOLITION 759
ensuring that better individuals are administrators of prisons, instead
of the current exploiters. We are being shown everyday that there is no
equal justice under the law. People who rise to certain influential posi-
tions have been found to be exempt from being equally treated by the
law, and this power tends to corrupt. The only true, conscientious prison
administrator is one whose ultimate goal would be the abolishment of
prisons, because he would know that so long as a man removes another
from society, or a society-like atmosphere, he is guilty of going against
nature itself.
Parchman is a plantation first, and a prison second. It has always
been like this even when it was first established at the state capitol in
Jackson, Mississippi. Frantic, desperate, enormous efforts are being
made to take the steps that will implement the drastic changes neces-
sary to make Parchman a prison with prisoners, as it's supposed to be,
instead of a plantation with slaves.
Even this effort is being beset with all types of unbelievable, para-
doxical forms of opposition. From massive political intervention, to per-
sonal individual intimidation, there are forces presently in effect to
prevent Parchman from being made into a prison. If the state does not
recognize us as prisoners with certain prisoners' rights, how then could
an individual or group of individuals be found that could establish a
prison reform program — let alone be effective? Right this minute we
prisoners are being used as political pawns, for the selfish gains of a few
individuals. There are those capitalizing off the fact that Parchman is
unconstitutional, that we are working under harsh conditions, forced to
live under deplorable conditions, subjected to numerous forms of terror
tactics, etc. And there are those who are capitalizing from the gradual
transition that is taking place, and the individual prisoner is no better
off mentally, physically, or spiritually than he was last year. With all
of the diverse individuals involved, with all of the various organizations
involved, the crucial issues are given only token representation.
In order for prison reform to work, all the elements that perpetuate
crime must be reformed too! Where then, can you find such administra-
tors who would go all out against these perpetuators? What man or men
can be found who would work for, and at the same time against, the
entire Government? To eliminate the genocidal practices in such places
would first necessitate exposure.
Genocide is an international crime punishable by international law.
Exposure then, could possibly destroy the American Government. Ob-
viously I'm dealing with the extreme viewpoints, but numerous others
who have dealt with half measures — ignoring one point for another, have
accomplished nothing. I'm serving a 20-year sentence for armed rob-
bery. I was convicted solely on the prosecuting attorney's ability to
convince the jury I was guilty without offering any substantial evidence.
760 MISSISSIPPI LAW JOURNAL [vol.45
It was never an issue whether I was guilty or not, but, rather, what legal
points could be gotten away with. The question of what remedial action
should be taken in behalf of the alleged victim was never discussed.
Neither was the point brought out as to what problems I might've had.
and whether provisional measures could be taken. No! The state saw a
chance to profit, and the prosecuting attorney was satisfying an ego
which got satisfaction out of making a jury believe what he wanted them
to. No, the extreme viewpoint must be considered and dealt with. It is
on these bases that I stand firmly convinced. Five years of my life have
been spent experiencing every aspect of incarceration. I've studied the
various situations and programs in other states, and I still irrevocably
state that prison abolishment or destruction is a mustl
The time has come to forget about reforming the prison system and
to begin thinking about replacing it. I'm looking at it from both view-
points, and any other decision will only involve a lot of rhetoric and
needless lives, time, and money spent. You really have an either-or
proposition. Either abolish the prison system or it will be destroyed! At
least through abolition the administrators can still retain an element of
control over the situation. If not, then the prison powder keg will blow.
It can be done. It has been done. There was a period in history when
no prisons existed. The laws of nature may be ignored or denied, but
they cannot be suppressed. Until there is Freedom, Justice and Equality
for all men in the lands of America — that is — full and complete freedom.
equal justice under the law, and equal opportunities for all, destruction
is the only possible end. Which incidentally makes prison reform a joke.
In the Spirit of the New World.
LOUIS X (HOLLOWAY)
35073
Camp Two
Parchman, Mississippi
38738
Mississippi Law Journal
JOURNAL of the MISSISSIPPI STATE BAR and
the UNIVERSITY of MISSISSIPPI SCHOOL of LAW
VOLUME 45
JUNE 1974
NUMBER 3
EDITORIAL BOARD
DAVID W. MOCKBEE
Editor-in-Chief
WILLIAM STEENE PAINTER
Assistant Editor
CLAIBORNE BARKSDALE
EUGENE THOMAS HOLMES
Article Editors
STEPHEN D. SZEGO
CHARLES GREG COPELAND
Research Editors
JIM BARNETTE TOHILL
Index and Review Editor
WILLIAM R. WRIGHT II
Business Manager
HENRY A. SCHUTZ III
MARTIN C. McWILLIAMS, JR.
Comment Editors
ROBERT EDWARD WARREN
STEPHEN W. ROSENBLATT
Note Editors
WILLIAM M. CHAMPION
Faculty Advisor
ASSOCIATE EDITOR
Robert T. Gordon, Jr.
Jackson Henderson Abies III
William Riddick Armstrong, Jr.
J. Price Coleman
Thomas Cleveland Collier, Jr.
W. Wayne Drinkwater, Jr.
Paul Douglas Fyke
Thomas C. Gerity
Thomas J. Ginger
Russell P. Grant, Jr.
William Ewing Hester III
David Bishop Howorth
Charles Fremont Johnson III
Judith Jones Johnson
Wilton Jerome Johnson III
William J. Landers
Robert M. Logan, Jr.
Dwight Keith Luter
William C. Murphree
W. McDonald Nichols
Judith Karen Oakes
Jesse Samuel Owens, Jr.
Mark Phillip Rabinowitz
Stephen J. Stubblefield
Bernard Wayne Vance
Randall D. Waks
W. David Watkins
E. Stephen Williams
J. Stephen Wright
COMMENTS
STOP AND FRISK IN MISSISSIPPI: IS IT LEGAL? SHOULD IT
BE? A COMMENT ON KEYS v. STATE
Six years ago the United States Supreme Court, yielding to the
"powerful hydraulic pressures . . . that [bore] heavily on [it] to water
down constitutional guarantees . . .,"' held, in Terry u. Ohio,2 that
police may, without violating the fourth amendment,3 "stop4 and frisk"5
suspected criminals without a warrant and upon less than probable
cause to make a full search or arrest. Last fall the Mississippi Supreme
Court, in Keys v. State,6 held, in spite of Terry, that police officers in
'Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). Some of the pressure
came in the form of scholarly commentary. See LaFave, "Street Encounters" and the
Constitution: Terry, Sibron, Peters and Beyond, 67 Mich. L. Rev. 39, 40-41 n.4 (1968),
and Raphael, "Stop and Frisk" in a Nutshell: Some Last Editorial Thrusts and Parries
Before It All Becomes History, 20 Ala. L. Rev. 294, 295 n.7 (1968), for numerous citations
to such material.
-392 U.S. 1 (1968).
'The fourth amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched, and the persons or
things to be seized.
U.S. Const, amend. IV (emphasis added). It is the "reasonableness" clause, italicized
above, which is relevant here.
'A "stop" is a "seizure" within the meaning of the fourth amendment. It is, however,
less intrusive than an arrest. See text accompanying note 40 infra. The term has been
defined by one authority as follows:
A "stop" is a temporary detention of a person for investigation. A stop occurs
when an officer uses his authority either to compel a person to halt, to remain
in a certain place, or to perform some act. . . . If a person is under a reasonable
impression that he is not free to leave the officer's presence, a "stop" has oc-
curred.
Project on Law Enforcement Policy & Rulemaking, Arizona State University, Model
Rules for Law Enforcement: Stop and Frisk 3 (1973) (footnotes omitted) [hereinafter
cited as Model Rules |.
"'A "frisk" is a "search" within the meaning of the fourth amendment, but is less
intrusive than a "full search," such as is conducted incident to an arrest. See note 40 and
accompanying text infra. A frisk is a limited patdown or an external feeling of clothing
for concealed weapons or dangerous instruments. Model Rules, supra note 4, at 12-13;
Raphael, supra note 1, at 304. The procedure described by the Court in Terry, 392 U.S.
at 17 n.13, quoting Priar & Martin, Searching & Disarming Criminals, 45 J. Crim. L.C.
& P.S. 481 (1954), refers, not to a frisk, but to the search conducted "after arrest and
before the arrested person is taken to the station." LaFave, supra note 1, at 91 & n.260.
"283 So. 2d 919 (Miss. 1973).
763
764 MISSISSIPPI LAW JOURNAL [vol. 45
Mississippi do not have the power "to search a person unless [that
person] is under arrest by authority of a warrant or for probable cause."7
Since the search in Keys, as in Terry, was a "patdown" or "frisk" rather
than a "full search," our court appears to have held that any search, no
matter how limited in scope and no matter what description given it, is
illegal in Mississippi unless it is conducted pursuant to either a warrant
or probable cause.8
It is the purpose of this comment to carefully examine the Keys
opinion, and then determine whether it is consistent with precedent,
and whether it is an expression of desirable social policy, that is,
whether it is responsive to present social realities in Mississippi.
I. The Factual Context of the Keys Decision
The Keys facts are: on October 14, 1971, 9 Officer Wayne Howard
of the Pascagoula Police Department, who had been employed by the
Department's Narcotics Division for 13 years,10 sent an informant,
whom Officer Howard knew and "[h]ad . . . used" before,11 to the
7 Id. at 921.
HThe exact holding of Keys is as follows:
In the instant case, the arresting officers contended that "patting down" the
defendant was not a search of his person. Their theory seems to be that they
merely "frisked him", and they seem to believe that they had the right to do so
without arresting him. We trust we will be understood when we say to "pat
down " is to search a person, and an officer has no authority to search a person
unless that person is under arrest by authority of a warrant or for probable
cause.
283 So. 2d 919, 921 (Miss. 1973) (citing Terry v. Ohio, 392 U.S. 1 (1968) as direct authority
for this statement) (emphasis added).
"Record at 34-35, Keys v. State, 283 So. 2d 919 (Miss. 1973). The first two sentences
of the statement of facts contained herein, which deal with events before issuance of the
search warrant, vary somewhat from the facts as set out in the court's opinion. This
writer's statement conforms to the "Affidavit for Search Warrant" and the "Search War-
rant" itself, Record at 34-35, while the court's statement on this point (283 So. 2d at 920,
third paragraph, first sentence of the opinion), which indicates that a telephone call from
the informant was the basis for the warrant, is taken verbatim from the Brief for
Appellant, at 2, and appears to be based on Officer Howard's interrupted testimony that
"|o|n October 15th of '71, I had received prior information from the informant, in getting
a search warrant — ." Record at 7. Howard actually received two calls from the informant
on October 15, one indicating that a raid of Keys' residence at 7 p.m. would not yield
anything, Record at 8, and one at 10 p.m., disclosing that contraband was contained in
the apartment at that time, Record at 10. (The Brief for Appellee does not discuss what
happened before the search warrant was issued.) Other than this minor incongruity which
could not have had any effect on the result, the facts stated herein are in conformity with
the opinion. The Record is cited hereafter only when the fact noted is not contained in
the opinion.
"'Record at 7.
"/d. at 19.
1974] COMMENTS 765
apartment of Robert Keys, Jr., to purchase marijuana.12 The informant
made the purchase from Keys, and returned to Officer Howard with the
contraband. At about 5 p.m. the next day,13 Officer Howard secured a
search warrant for Keys' apartment, but did not ask for an arrest war-
rant.14 Later that evening, he and a partner drove to Keys' apartment.15
As they approached, they saw Keys and two passengers drive off. The
officers followed for about a mile, and then stopped Keys' car in order
to serve the warrant. After both cars stopped, the policemen approached
Keys' car, and asked Keys to ''step from [his] vehicle, which he did."16
Howard then frisked Keys and found three matchboxes containing mari-
juana. After the frisk, three more matchboxes were seen in "plain
view."17 Keys was then arrested for possession of the marijuana and
taken to the police station where he was formally charged and served
with the warrant.
On these facts, Keys was convicted and sentenced for possession of
marijuana. On appeal, the Mississippi Supreme Court viewed the au-
thority to frisk as emanating directly and exclusively from the authority
to arrest. Consequently, the court held that since the officers did not
have the authority to arrest Keys, the "search . . . was clearly . . .
illegal . . . ,"lx and therefore the fruits of the illegal search should have
been excluded.11' In reversing the conviction, the court stated that Keys'
i2Id. at 34-35.
"Id. at 11.
"Id. at 20. Howard explained that he did not ask for an arrest warrant because "[i]t
has never been the policy to do this . . . ." Id. at 68.
"Id. at 9-10.
"Id. at 20.
''Two matchboxes were in the car, and one was on the ground. Id. at 16-17. Since the
second set of matchboxes was found after the illegal frisk, they were properly excluded
as "fruits of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488 (1963).
However, had all police conduct been proper, these three matchboxes could possibly have
been admissible under the "plain view" doctrine, which holds that "objects falling in the
plain view of an officer who has a right to be in the position to have that view are subject
to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 236
(1968).
I8283 So. 2d 919, 921 (Miss. 1973).
''The exclusion of the marijuana was commanded by the "exclusionary rule," which
is a judicially-created doctrine designed to put teeth in constitutional guarantees against
illegal seizure of evidence. It was adopted by the Mississippi Supreme Court in 1922, in
Tucker v. State, 128 Miss. 211, 90 So. 845 (1922), 39 years before it was applied to all the
states by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643 (1961). The
rule exists for two reasons: (1) to deter unlawful official conduct, and (2) to insure the
integrity of the judiciary. See, e.g., Mapp v. Ohio, supra. The rule is often criticized. E.g.,
Bivens v. Six Unknown Agents, 403 U.S. 388, 418 (1971) (Burger, C.J., dissenting) ("me-
chanically inflexible response"); People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587
(1926) (Cardozo, J.) ("[t|he criminal is to go free because the constable has blundered");
Oaks, Studying the Exclusionary Rule in Search & Seizure, 37 U. Chi. L. Rev. 665 (1970)
766 MISSISSIPPI LAW JOURNAL [vol.45
motion for a directed verdict should have been granted, "since the only
testimony offered was illegally obtained."20
The court's discussion of the facts and the law applicable to the
encounter between Keys and the officers is brief,21 thus rendering it
difficult to predict how the court will view stop and frisk fact situations
in the future. The opinion appears to hold that all frisks violate the law;
nevertheless, the possibility always remains that the court will later
limit the application of the Keys holding to the Keys facts.22 This com-
ment will take the position that the Keys holding is commendable and
that no retreat from it is called for.
II. Is Keys Consistent With Precedent?
A. The United States Supreme Court
The Terry decision represented the first time23 the Supreme Court
sanctioned police stop and frisk procedures. On its own facts, Terry does
not ignore or do violence to the Constitution; however, as will later be
made clear, its carefully limited holding has been extended by many
courts to allow searches and seizures which are clearly unreasonable. In
(rule does not in fact deter illegal police conduct). See also Wright, Must the Criminal
Co Free if the Constable Blunders?, 50 Texas L. Rev. 736 (1972) (apply rule only where
police conduct has been flagrantly illegal). And it is often defended. E.g., Mapp v. Ohio,
supra; Elkins v. United States, 364 U.S. 206 (1960); Wolf v. Colorado, 338 U.S. 25. 41
(1949) (Murphy, J., dissenting) (argues that rule should be applied to states); Weeks v.
United States, 232 U.S. 383 (1914) (applying rule to federal prosecution). See generally
Terry v. Ohio, 392 U.S. 1, 12-15 (1968) (rule is needed but cannot be applied where State
does not prosecute).
-"Keys v. State, 283 So. 2d 919, 921-22 (Miss. 1973).
2lThe discussion took up only 2 pages of the 8-page opinion. The court used the
remainder of the opinion to discuss and overrule the "doctrine of curative admissibility,"
which held that a defendant who objected to the State's introduction of illegally-seized
evidence had waived the objection when he later took the stand and admitted that he
possessed the material in question. The doctrine had long been recognized in Mississippi.
but had been invalidated as violative of due process by several decisions of the United
States Supreme Court. See, e.g., Harrison v. United States, 392 U.S. 219, 223-24 (1968),
quoted in Keys v. State, 283 So. 2d 919, 926 (Miss. 1973):
The question is not whether the petitioner made a knowing decision to
testify, but why. If he did so in order to overcome the impact of [evidence]
illegally obtained and hence improperly introduced, then his testimony was
tainted by the same illegality that rendered the [evidence itself] inadmissible.
--.Sec, e.g., LaFave, supra note 1, at 111 n.371, discussing how Escobedo v. Illinois.
378 U.S. 478 (1964), was modified by Miranda v. Arizona, 384 U.S. 436 (1966).
-'Adams v. Williams, 407 U.S. 143, 153 (1972) (Marshall, J., dissenting); Terry v.
Ohio, 392 U.S. 1, 9-10 (1968); United States v. Greene, 429 F.2d 193, 197 n.7 (D.C. Cir.
1970). One commentator has asserted that police had stop and frisk authority at common
law. Cook, The Art of Frisking, 40 Fordham L. Rev. 789, 790 & n.7 (1972); Cook. Varieties
of Detention and the Fourth Amendment, 23 Ala. L. Rev. 287, 295 (1971).
1974] COMMENTS 767
Terry, Detective Martin McFadden, who had been a policeman for 39
years, was patrolling on foot in downtown Cleveland one afternoon in
1963 when he observed Terry and a companion standing on the corner
of Huron Road and Euclid Avenue. The two men " 'didn't look right to'
[the officer |,"24 so he began watching them. One of them walked up
Huron, looked into a store window, walked further up the street, re-
turned to the same store window, and then rejoined his companion to
confer briefly. The companion then followed the same procedure, and
between them the two suspects ''repeated this ritual"25 about a dozen
times. During this "performance,"26 a third man joined them for a brief
conversation, and then departed up Euclid Avenue. After he left, the
other two "resumed their measured pacing, peering and conferring"27 for
10 minutes, and then walked up Euclid and met the third man. Officer
McFadden, thinking that the three men were " 'casing a job, a stick-
up,' "2S and might be armed, approached them, announced that he was
a policeman, and asked their names. When they merely " 'mumbled
something' "2!) in answer, McFadden immediately patted down the out-
side of Terry's clothing and felt a gun, which he seized. Terry was
convicted of possession of a concealed weapon,30 and his conviction was
twice affirmed by Ohio state courts.31
The United States Supreme Court, in an opinion written by then
Chief Justice Warren, also affirmed.32 The Court stated the issue nar-
rowly: "whether it is always unreasonable for a policeman to seize a
person and subject him to a limited search for weapons unless there is
probable cause for an arrest."33 The opinion then avoided deciding the
constitutionality of an investigative stop upon less than probable cause.
This question was avoided because the majority felt that it could not
tell from the record whether McFadden had, "by means of physical force
or show of authority, . . . restrained [Terry's] liberty" before the frisk,
that is, whether a "seizure," within the meaning of the fourth amend-
-'Terry v. Ohio, 392 U.S. 1, 5 (1968).
2?LaFave, .supra note 1, at 47, quoting Terry v. Ohio, 392 U.S. 1, 6 (1968).
2i;LaFave, supra note 1, at 47.
27Terry v. Ohio, 392 U.S. 1, 6 (1968).
'"Id.
»Id. at 7.
'"Possession of a concealed weapon was a violation of Section 2923.01 of the Ohio
Code. Ohio Rev. Code § 2923.01 (1953).
"State v. Terry, 5 Ohio App. 2d 122, 214 N.E.2d 114 (1966). The Ohio Supreme Court
dismissed the appeal for lack of a "substantial constitutional question." See Terry v. Ohio,
392 U.S. 1, 8 (1968).
12Terry v. Ohio, 392 U.S. 1, 8 (1968).
xiId. at 15.
"See Yam Sang Kwai v. Immigration & Naturalization Service, 411 F.2d 683, 693 n.10
(D.C. Cir. 1969) (Wright, J., dissenting), cert, denied, 396 U.S. 877 (1969); LaFave, supra
768 MISSISSIPPI LAW JOURNAL [vol.45
ment, had occurred. r'
The holding in Terry was also limited:
We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his ex-
perience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identifies himself as a po-
liceman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for
his own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might
be used to assault him.36
While some theoreticians have maintained that such a carefully
limited holding is "the essence of good appellate judging in uncharted
territory,"57 this holding probably failed to answer as many questions as
it raised,38 and left lower courts without much guidance in "this impor-
tant new field of law."39 The Terry Court did make four points clear: (1)
the reasonableness clause of the fourth amendment governs stop and
frisk procedure as well as more intrusive searches and seizures;40 (2)
officers must still obtain warrants "whenever practicable," but in stop
and frisk situations the warrant procedure is not practicable;41 (3) offi-
cers cannot frisk a citizen unless they reasonably fear that he is armed
and presently dangerous to the officers or to others;42 and (4) because
note 1, at 63, 64; cf. Terry v. Ohio, 392 U.S. 1, 31 (1968) (Harlan, J., concurring).
None of the other three opinions handed down with Terry decides the question either.
The issue was squarely presented in Wainwright v. New Orleans, 392 U.S. 598 (1968), but
the writ of certiorari was dismissed as improvidently granted. In Sibron v. New York, 392
U.S. 40 (1968), a frisk which yielded heroin was declared invalid because the officer had
no reasonable fear that Sibron was armed. And in Peters v. New York, 392 U.S. 40 (1968).
the Court found that Peters had been arrested upon probable cause.
;Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
"Id. at 30.
i7LaFave, supra note 1, at 46 n.28, quoting K. Llewellyn, The Common Law Tradi-
tion, Deciding Appeals 389 (1960).
!sLaFave, supra note 1, at 46.
'Terry v. Ohio, 392 U.S. 1, 31 (1968) (Harlan, J., concurring).
u,Id. at 16-19 & n.15.
'7c/. at 20; accord, United States v. United States District Court, 407 U.S. 297. 318
( 1972). This preference for warrants is not always applied by courts. LaFave, Warrantless
Searches & the Supreme Court: Further Ventures into the "Quagmire, "8 Crim. L. Bull.
9. 27 (1972). Nor is it often taken seriously by police. "[I]n the city of San Francisco there
wore only 19 search warrants issued in 1966 and only 20 in 1967." Dorman v. United
States, 435 F.2d 385, 400 n.3 (D.C. Cir. 1970) (Wright, J., concurring & dissenting).
'-Terry v. Ohio, 392 U.S. 1, 24, 27, 30 (1968).
1974] COMMENTS 769
"[t|he scope of [any) search must be 'strictly tied to and justified by'
the circumstances which rendered its initiation permissible,"43 the scope
of a permissible frisk for weapons must not go beyond a patdown of a
suspect's outer clothing.44 Furthermore, the Court stated no less than
five guidelines for lower courts and police officers to use in deciding the
legality of official conduct, each of which has been treated as "the Terry
test" by some lower court.45 The Court, however, left four other highly
important questions unanswered: (1) When can a police officer make a
forcible stop of a citizen?46 (2) When, if at all, does an informant's tip
justify a stop and frisk?47 (3) How long can a permissible stop last?48 (4)
When, after a proper forcible stop has been made, is a citizen required
to answer a police officer's questions?49
Hd. at 19, quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concur-
ring).
"392 U.S. at 26, 29, 30.
'"'(1) "In determining whether the seizure and search were 'unreasonable' our inquiry
is a dual one — whether the officer's action was justified at its inception, and whether it
was reasonably related in scope to the circumstances which justified the interference in
the first place." Terry v. Ohio, 392 U.S. 1, 19-20 (1968), cited as controlling in, e.g.,
Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969).
(2) "|T|here is 'no ready test for determining reasonableness other than by balanc-
ing the need to search [or seize| against the invasion which the search [or seizure)
entails.' Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967)." Terry v. Ohio, supra
at 21, cited as controlling in, e.g., United States v. Davis, 459 F.2d 458, 459 n.3 (9th Cir.
1972).
(3) "|I|n justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant [the| intrusion." Terry v. Ohio, supra at 21, cited as controlling
in, e.g., Gomez v. Wilson, 323 F. Supp. 87, 92 (D.D.C. 1971), remanded, All F.2d 411 (D.C.
Cir. 1973).
(4) "|I|t is imperative that the facts be judged against an objective standard:
would the facts available to the officer at the moment of the seizure or search 'warrant a
man of reasonable caution in the belief that the action taken was appropriate?" Terry v.
Ohio, .supra at 21-22, cited as controlling in, e.g., United States v. Hostetter, 295 F. Supp.
1312, 1315 (D. Del. 1969).
(5) "[A| police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest." Terry v. Ohio, supra at 22, cited as
controlling in, e.g., Adams v. Williams, 407 U.S. 143, 145 (1972).
'"See note 34 supra.
l7This question was partially answered by Adams v. Williams, 407 U.S. 143 (1972).
See notes 58 & 59 and accompanying text infra.
'"LaFave, supra note 1, at 98; see notes 88-92 and accompanying text infra.
l!lThis question has apparently never been authoritatively answered. If no forcible stop
has been made, it is clear that: "[WJhile the police have the right to request citizens to
answer voluntarily questions concerning unsolved crimes they have no right to compel
them to answer." Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969). See also Terry v. Ohio,
392 U.S. 1, 34 (1968) (White, J., concurring). At least one court appears to believe that
770 MISSISSIPPI LAW JOURNAL [vol.45
In Adams v. Williams,™ the only case since Terry and its compan-
ions in which the Court has dealt directly with stop and frisk, Justice
Rehnquist, writing for the Court, provided partial answers to the first
two of the above questions. Officer John Connolly, while on duty about
2 a.m. in a high crime area of Bridgeport, Connecticut, was told by an
informant that Williams, who was sitting alone on the passenger side of
a car parked nearby with the motor turned off, had narcotics on his
person and a gun in his waistband. The officer walked up to the car and
asked Williams to open the door. When Williams rolled down his win-
dow instead, Connolly immediately reached for Williams, found a gun
in his waistband, and removed it. Following Williams' arrest for posses-
sion of a concealed weapon, an extensive search uncovered heroin in his
coat and in his automobile.51 Williams was convicted for possession of
both the gun and the drugs, and his conviction was affirmed by the
Connecticut Supreme Court,52 but the United States Court of Appeals
for the Second Circuit found the stop and frisk for the gun, Williams'
arrest, and the subsequent search for heroin illegal, and granted Wil-
liams' petition for a writ of habeas corpus.53
The Supreme Court reversed, finding that Officer Connolly's ac-
tions "conformed to the standards this Court laid down in Terry."54
Connolly's request that Williams open his door was a forcible stop, but
was "reasonable," since (quoting vague dictum in Terry) "a police offi-
cer may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possible criminal behav-
ior even though there is no probable cause to make an arrest."55 The
the answer to the question posed is "never." Loyd v. Douglas, 313 F. Supp. 1364. 1372
(S.I). Iowa 1970). Nevertheless many citizens do feel compelled to answer. "[0]f 300 field
interrogations observed in Chicago, in not one instance did the suspect refuse to answer
questions." LaFave, supra note 1, at 93 n.275, citing Pilcher, The Law & Practice in Field
Interrogation, 58 J. Crim. L.C. & P.S. 465, 488 (1967); accord, Miranda v. Arizona. 384
U.S. 436, 468 n.37 (1966).
"''407 U.S. 143 (1972). Though some judges have insisted that Adams did not extend
Terry, but only decided the relationship between an informant's tip and a stop and frisk.
e.g., Gomez v. Wilson, 477 F.2d 411, 424 n.10 (D.C. Cir. 1973) (Bazelon, C.J., concurring
& dissenting); Long v. District of Columbia, 469 F.2d 927, 935 (D.C. Cir. 1972) (Wright,
•J., concurring), most courts have disagreed, e.g. , United States v. Riggs. 347 F. Supp.
1098, 1103 (E.D.N.Y. 1972), aff'd, A1A F.2d 699 (2d Cir. 1973).
"•'407 U.S. at 145.
'-State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968), cert, denied, 395 U.S. 927
(1969).
-Williams v. Adams, 441 F.2d 394 (2d Cir. 1971) {en banc), reversing 436 F.2d 30 (2d
f'ir. 1970). Habeas corpus actions brought by state prisoners are governed by 28 U.S.C.
§§ 2241-54 (1970).
'Adams v. Williams, 407 U.S. 143, 144 (1972).
'•Id. at 145, quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).
1974] COMMENTS 111
officer's opening of the car door and reaching to Williams' waistband for
the gun was also "reasonable," according to the majority, because "Sgt.
Connolly had ample reason to fear for his safety."56 After the gun was
found, Williams was arrested for its possession upon probable cause,
even though possession of a concealed weapon is legal in Connecticut
where the possessor has a permit.57 The subsequent search for and sei-
7.ure of the heroin was also held proper. Most importantly, the Court
held that Officer Connolly's initial actions — the stop and frisk — were
justified by the informant's tip, notwithstanding the fact that the tip
would not have furnished probable cause for arrest or search. "[T]he
information carried enough indicia of reliability to justify the officer's
forcible stop of Williams,"58 and subsequent events justified Officer
Connolly's actions pursuant to the tip.
Adams did little to clarify the objective standards to be applied by
lower courts in stop and frisk cases. It told us that this tip justified this
stop and frisk, but also said that "[sjome tips, completely lacking in
indicia of reliability,"59 would not suffice. What does "enough indicia of
reliability" mean? We are not told; we can only infer that it means more
than nothing and less than is required for probable cause. The import-
ance of Adams, however, does not lie in the doctrine it espouses. The
Adams decision, along with several other Burger Court opinions in the
area of criminal procedure, exemplifies the willingness of the present
majority to do what it can to uphold convictions, even where previously-
recognized constitutional rights must be abridged to do so,60 and even
r,ll407 U.S. at 147-48.
:'~Id. at 159 (Marshall, J., dissenting).
5K/d. at 147.
MId.
""Compare, e.g., United States v. Robinson, 94 S. Ct. 467 (1973), and Gustafson v.
Florida, 94 S. Ct. 488 (1973), with Chimel v. California, 395 U.S. 752 (1969), and Terry v.
Ohio, 392 U.S. 1 (1968) (search incident to arrest). Compare United States v. Ash, 413
U.S. 300 (1973), and Kirby v. Illinois, 406 U.S. 682 (1972), with United States v. Wade,
388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967) (right to counsel at line-
ups and picture showings). Compare Tollett v. Henderson, 411 U.S. 258 (1973), with
Patton v. Mississippi, 332 U.S. 463 (1947) (racial composition of jury). Compare Johnson
v. Louisiana, 406 U.S. 356 (1972), and Apodaca v. Oregon, 406 U.S. 404 (1972) with
Duncan v. Louisiana, 391 U.S. 145 (1968) (right to jury trial). Compare United States v.
Harris, 403 U.S. 573 (1971), with Spinelli v. United States, 393 U.S. 410 (1969) (warrant
based on tip). Compare Harris v. New York, 401 U.S. 222 (1971), with Miranda v. Arizona,
384 U.S. 436 (1966) (cf. Tucker v. Johnson, 352 F. Supp. 266 (E.D. Mich. 1972), aff'd
mem., 480 F.2d 927 (6th Cir. 1973), cert, granted sub nom, 94 S. Ct. 568 (1973)). Compare
United States v. White, 401 U.S. 745 (1971), with Berger v. New York, 388 U.S. 41 (1967)
(wiretaps).
From a reading of the foregoing opinions, it would appear that Chief Judge Friendly 's
hope that "|i|f the course of decision is to be altered by the newly constituted Court,
. . .the changes should be clearly articulated and rationally explicated," has not been
772 MISSISSIPPI LAW JOURNAL [vol. 45
where precedent must be ignored.61
B. Lower Courts62
Lower courts have struggled to apply the few "stop and frisk" prin-
ciples laid down by the Supreme Court to the numerous fact situations
which have come before them.63 Some cases have dealt with stops only,64
some with stops and frisks,65 and some with only frisks.66 The most
difficulty has been encountered in deciding whether forcible stops were
justified in particular situations. The fact that the most difficulty has
been encountered at this point stands to reason, since the Supreme
Court has carefully avoided enumerating precise standards to be used
in making the determination. Some courts, in order to uphold forcible
stops, have used such observations as: "[T]here is nothing ipso facto
unconstitutional in the brief detention of citizens in circumstances not
justifying an arrest, for purposes of limited investigation in the course
of routine police investigations."67 Most courts, however, have required
some kind of "reasonable suspicion"68 — not just an "inarticulable
fulfilled. Friendly, Mr. Justice Harlan, As Seen by a Friend and Judge of an Inferior Court,
85 Harv. L. Rev. 382, 388 (1971).
'"For example, Terry required that an officer have a reasonable belief that a suspect
was armed and dangerous before a frisk could be conducted; the Adams majority "vir-
tually ignores" the "and dangerous" part of the requirement. Adams v. Williams, 407 U.S.
143, 159 (1972) (Marshall, J., dissenting).
"This comment places heavy reliance on decisions of lower federal courts. This does
not mean that state courts do not confront these issues; rather, federal cases are cited
because more readers will have access to the federal reporters than to those of states
outside this region.
n:tAs one judge has put it:
The resolution of search and seizure questions by lower courts (and by law
enforcement officials) has been fraught with difficulty because precedents from
the High Court are, with deference, often difficult to reconcile. Over the 183
years since the adoption of the Bill of Rights, the Court's decisions have, in the
words of one of the Justices, been "unexplained and inexplicable."
United States v. Ragsdale, 470 F.2d 24, 27 (5th Cir. 1972) (Clark, J.), quoting Coolidge v.
New Hampshire, 403 U.S. 443, 521 (1971) (White, J., concurring & dissenting).
'"E.g., United States v. Catalano, 450 F.2d 985 (7th Cir. 1971), cert, denied sub nom.
Moscatello v. United States, 405 U.S. 928 (1972); United States v. Gazaway, 297 F. Supp.
67 (N.D. Ga. 1969).
'"E.g., United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972); Dykes v. Camp. 333
F. Supp. 923 (D. Mo. 1971).
'"E.g., United States v. Miller, 468 F.2d 1041 (4th Cir. 1972), cert, denied. 410 U.S.
935 (1973). Terry is often used as a justification for airport searches. E.g., United States
v. Moreno, 475 F.2d 44 (5th Cir. 1973).
"United States v. Fisch, 474 F.2d 1071, 1076 (9th Cir.), cert, denied. 412 U.S. 921
(1973), quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966).
"E.g., United States v. Davis, 459 F.2d 458 (9th Cir. 1972).
1974] COMMENTS 773
hunch""" — "that criminal activity may be afoot."70
Although courts have generally paid at least lip service to the "rea-
sonable fear" prerequisite to a frisk,71 and to the requirement that even
a permissible frisk be limited in scope to a patdown of a suspect's outer
clothing for weapons,72 many courts have picked up the signals recently
sent out from Washington and upheld police action which was arguably
unnecessary or more intrusive than warranted by the facts.73 One way
this has been done is to use Terry, much as the "harmless error" rule74
is often employed, to affirm convictions where appellate courts are not
sure whether error was committed below.75 For example, if a court has
trouble deciding whether the prosecution is correct in asserting that
officers had probable cause to arrest or search before they conducted a
stop or frisk, the court may avoid the problem by holding that even if
probable cause was not present, Terry justified the police action.78
C. The Mississippi Supreme Court
The Mississippi Supreme Court has been called upon to consider
Terry and its progeny in only one case other than Keys: Dotson v.
State.'1 In Dotson, as Highway Patrolman David Huggins drove up to
the Tunica Post Office about midnight, January 14, 1971, he observed
"E.g., United States v. Day, 455 F.2d 454 (3d Cir. 1972).
7"Terry v. Ohio, 392 U.S. 1, 30 (1968). Chief Judge Brown has said that such a
suspicion exists when "a prudent officer could reasonably conclude that something was
rotten in Denmark." United States v. Colbert, 474 F.2d 174, 179 (5th Cir. 1973) (concur-
ring opinion).
7,f:.A'., Stotts v. Perini, 427 F.2d 1296 (6th Cir. 1970).
"Kg., Tinney v. Wilson, 408 F.2d 912 (9th Cir. 1969).
7!See Orricer v. Erickson, 471 F.2d 1204, 1208 (8th Cir. 1973) (concurring opinion), in
which, after the majority affirmed a denial of habeas corpus relief, Judge Webster con-
curred on the ground that, even if the majority were in error, the Supreme Court would
not reverse.
7,The "harmless error" rule is codified at Fed. R. Crim. P. 52, and at Miss. Sup. Ct.
R. 11.
ir'See, e.g., Prestage v. State, 257 So. 2d 882 (Miss. 1972); Collins v. State, 202 So. 2d
644 (Miss. 1967).
nSee, e.g., United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972) (stop and frisk);
Dodd v. Beto, 435 F.2d 868 (5th Cir. 1970), cert, denied, 404 U.S. 845 (1971) (stop); Ballou
v. Massachusetts, 403 F.2d 982 (1st Cir. 1968), cert, denied, 394 U.S. 909 (1969) (frisk).
77260 So. 2d 839 (Miss. 1972). The relationship between the Mississippi case of Smith
v. State, 240 Miss. 738, 128 So. 2d 857 (1961), and the more recent group of stop and frisk
cases is not settled. If "an arrest begins when an officer begins his pursuit for the purpose
of making an arrest," and the officer must have probable cause at that instant for the
arrest to be valid, id. at 743, 128 So. 2d at 859, what happens if an officer, without probable
cause, pursues a person to make a forcible stop short of an arrest? If an officer cannot
legally do this, it is obvious that such a rule is more "honoured in the breach than the
observance." "Hamlet," Act 1, Scene 4.
774 MISSISSIPPI LAW JOURNAL [vol.45
Mr. Dotson " 'coming out of the post office walking in a rather sideways
manner, appearing to ... be hiding something, and . . . [with] some-
thing in his hands.' "7X Huggins "asked" Dotson to "hold up a minute";79
but Dotson kept walking. At this point Huggins stopped his car beside
Dotson, jumped out, and ordered Dotson to halt and to hold up what-
ever he had in his hands. Dotson complied, and Huggins identified the
objects in Dotson's hands as a large bolt and screwdriver. Dotson was
arrested, tried, convicted and sentenced for possession of burglary
tools.80
On appeal, Dotson's conviction was affirmed. The court held that
"[although the facts [varied] substantially, . . . [the] case [fell]
squarely within the rationale ... of Terry . . . ."81 In order to deter-
mine whether Huggins' actions were "reasonable," the court felt called
upon, pursuant to Terry, to balance the need to stop Dotson with the
intrusion which it entailed. To do this, the court used one of Terry's
many tests: it determined, first, "whether the officer's action was justi-
fied at its inception, and [second], whether it was reasonably related
in scope to the circumstances which justified the interference in the first
place."82
Since Huggins "had reasonable grounds to suspect" that criminal
activity was afoot, his order to Dotson to stop and hold up his hands was
"justified," thus satisfying the first prong of the test. The second re-
quirement was easily met since all Huggins did after his initial intrusion
was to order Dotson to drop the tools. Because the contraband was in
Huggins' plain view83 after Dotson was ordered to stop, the court ex-
pressly disregarded the "frisk" aspect of Terry.
D. Keys Compared With Precedent
Assuming that Keys was properly characterized as a stop and frisk
case,81 four questions must be asked to determine whether the Keys
7H260 So. 2d 839, 840 (Miss. 1972). Huggins had been a highway patrolman for less
than 2 years when Dotson was arrested. Record at 10, id. at 839.
7:,260 So. 2d at 839.
""Possession of burglary tools is made a crime by Miss. Code Ann. § 97-17-35 (1972).
M260 So. 2d at 840.
*2Id. at 841, quoting Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
*:iSee note 17 supra.
*'Since the officers had enough information to secure a warrant to search Keys' resi-
dence, it is possible that they also had probable cause to arrest him, and thus to conduct
a thorough search incident to the arrest, such search having been granted legality in
United States v. Robinson, 94 S. Ct. 467 (1973). However, if the officers had information
sufficient to constitute probable cause, they certainly did not communicate this to the
court. See Record, Keys v. State, 283 So. 2d 919 (Miss. 1973). See also LaFave, supra note
1, at 72 n.165.
1974] COMMENTS lib
opinion is consistent with precedent: (1) Were the officers justified in
stopping Keys' car? (2) If they were, was the detention brief enough?
(3) Was the frisk justified? (4) If so, was it properly limited in scope?
The validity of the initial stop was not discussed in the opinion,
although it could have rested on one or both of two theories. The first
theory is that Keys was not stopped for the purpose of arresting him,
but rather so that he could be served with the warrant for the search of
his apartment. Since officers have the authority to stop vehicles to check
for driver's licenses and vehicle registration papers,85 surely a stop to
serve judicial process is permissible. However, the warrant was not
served until after Keys was arrested and in custody, which leaves Officer
Howard's assertion that the stop was made to serve the warrant open
to considerable doubt. The second available theory, though, would more
probably support the legality of the stop. Since the officers had informa-
tion that Keys had marijuana in his apartment, they may have had
enough cause to "reasonably] suspect"86 that he also had contraband
in his car or on his person, thus justifying their detention of him for
"routine investigation."87
As to the permissible time limit for such a detention: "[t]he case
law is virtually unanimous in requiring that stops be 'brief .... The
case law is also virtually unanimous in refraining from saying what
'brief means."88 The proposed Model Rules suggest that a stop upon
"reasonable suspicion" not last longer than necessary to "determine if
the person should be arrested or released," and in any case not longer
than 20 minutes.8" Since only 3 minutes elapsed between Keys' stop and
his arrival at the police station, it would appear that the duration of the
stop was clearly reasonable. However, since "[t]he scope of the search
must be 'strictly tied to and justified by' the circumstances which ren-
dered its initiation permissible,"90 Keys could be stopped only long
enough to carry out the legitimate objective of the stop91 — either long
enough to serve the warrant, or long enough to determine if an arrest
H5Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So. 2d 512 (1963). See also
Fatenotte v. United States, 266 F.2d 647 (5th Cir. 1959).
NliSee note 68 and accompanying text supra.
s7See note 67 and accompanying text supra. But if they did, they did not so testify.
See note 84 supra.
""Model Rules, supra note 4, at 42.
s:'M at 9.
""Terry v. Ohio, 392 U.S. 1, 19 (1968), quoting Warden v. Hayden, 387 U.S. 294, 310
(1967) (Fortas, J., concurring).
!"In United States v. Luckett, 484 F.2d 89 (9th Cir. 1973), Luckett's motion to sup-
press counterfeit money orders was sustained because he was detained after a citation was
issued to him for jaywalking, even though the police had no reasonable suspicion of other
criminal activity.
776 MISSISSIPPI LAW JOURNAL [vol. 45
was called for. Using this logic, the stop was too long if its purpose was
to serve the warrant, but was not too long if its purpose was to see
whether an arrest was called for.92
The record provides no basis for a holding that the frisk was lawful.
Officer Howard testified that he frisked Keys for weapons because he
was "in fear for his safety,"93 but he furnished no reason why he was "in
fear"; Officer Howard only said that such frisks were "always done."94
Bare assertions are not sufficient under Terry; enough specific and arti-
culable facts must be shown to persuade a neutral and detached ob-
server that the action taken was appropriate.95
Furthermore, even if the frisk was legal at its inception, it is diffi-
cult to see how it did not exceed its permissible scope. When Officer
Howard testified that "I patted him down, I did not search him,"96
presumably he meant that he merely patted the outside of Keys' clo-
thing for weapons, and in the course of the patdown felt three hard
objects in Keys' pockets. Presumably Howard then reached into Keys'
pockets and seized the three hard objects, examined them, saw that they
were matchboxes, and then opened each of them, revealing what ap-
peared to be marijuana. Unless Howard could convince the court that
he had a reasonable belief that the hard objects he felt were weapons,
Howard could not legally reach into Keys' pockets.97
To summarize, it cannot be gleaned from the record whether the
stop was "justified at its inception," or whether it lasted too long, but
it can be concluded that the frisk was illegal both at its inception and
in its scope. Thus the result in Keys is consistent with precedent, regard-
less of whether this comment correctly construes the opinion as invali-
dating stop and frisk in Mississippi, or whether the court subsequently
reveals that it meant to hold that this frisk only was illegal.
III. Is Keys an Expression of Desirable Social Policy?
There is another possible reason, other than that expressly given by
the court, for the holding in Keys: the court may have felt that it would
be unwise and unnecessary to grant stop and frisk powers to police
officers in Mississippi.
"'Ordering Keys out of his car did not render the stop an arrest. United States v.
Harflinger, 436 F.2d 928, 933 (8th Cir. 1970), cert, denied, 402 U.S. 973 (1971).
"'Record at 39.
"Id.
"Terry v. Ohio, 392 U.S. 1, 27 (1968); Stotts v. Perini, 427 F.2d 1296 (6th Cir. 1970).
'"'Record at 15.
"See, e.g., United States v. Del Toro, 464 F.2d 520 (2d Cir. 1972); Tinnev v. Wilson.
408 F.2d 912 (9th Cir. 1969). See also Cook, The Art of Frisking, supra note 23. at 796 &
nn.42-44 (1972).
1974] COMMENTS 111
The Supreme Courts of both the United States and Mississippi
have historically agreed with the words of Justice Jackson:
[Fourth amendment rights] belong in the catalog of indispensable
freedoms. Among deprivations of right, none is so effective in cowing a
population, crushing the spirit of the individual and putting terror in
every heart. Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government.98
In keeping with this viewpoint, the Terry majority "begrudgingly"99
recognized that police officers in high crime areas of major cities needed
stop and frisk power in order to protect themselves and the public. All
of the Supreme Court cases, and most of those in lower courts, in which
stop and frisk procedure has been upheld,100 have in fact come from large
metropolitan areas,101 where violent crimes are committed at an alarm-
ing pace.102 In those areas, stop and frisk practices may well be neces-
sary, and thus judicial condonation of them may have to be justified at
this time.
Mississippi, however, has but two metropolitan areas,103 neither of
which is anywhere near as large as Cleveland, Ohio — where Officer
McFadden met Terry and his compatriots — or Bridgeport, Connecti-
cut— where Officer Connolly felt called upon to seize a weapon and some
heroin from Williams.104 Furthermore, we are blessed with a low crime
!lsBrinegar v. United States, 338 U.S. 160, 180 (1949) (dissenting opinion written soon
after return from Nuremberg trials), quoted in Almeida-Sanchez v. United States, 413
U.S. 266, 274 (1973); cf. Terry v. Ohio, 392 U.S. 1, 9 (1968), quoting Union Pac. Ry. v.
Botsford, 141 U.S. 250, 251 (1891).
!,!lAdams v. Williams, 407 U.S. 143, 154 (1972) (Marshall, J., dissenting).
""The two Supreme Court cases are Adams v. Williams, 407 U.S. 143 (1972), and
Terry v. Ohio, 392 U.S. 1 (1968). Some lower court cases are; e.g., United States v.
Moreno, 475 F.2d 44 (5th Cir. 1973) and United States v. Lopez, 328 F. Supp. 1077
(E.D.N.Y. 1971) (airport stop and frisk).
""For example, the metropolitan area of Cleveland, Ohio — where Terry took
place — has a population of 2,064,000, and the Bridgeport, Connecticut, metropolitan area
— where Adams occurred — has a population of 794,000. Bureau of the Census, Social
& Economic Statistics Administration, U.S. Dep't. of Commerce, Statistical Abstract
of the United States 1972, at 838-39.
'"-'For example, there were 750 murders and 7100 assaults in Detroit, Michigan in
1973. Anderson, It's a Mystery Why Detroit Tops U.S. in Homicides, Detroit Free Press,
Jan. 6, 1974, § A, at 3, cols. 7-8, & at 9, cols. 1-8. See also Federal Bureau of Investiga-
tion, Uniform Crime Reports for the United States 1972, at 120 (1973) [hereinafter
cited as Uniform Crime Reports).
",:,In 1970 the Jackson area had a population of 258,897, and the Biloxi-Gulfport area
had a population of 134,582. Division of Business & Industry, College of Business &
Industry, Mississippi State University, Mississippi Statistical Abstract 1973 at 79.
""See note 101, supra.
778 MISSISSIPPI LAW JOURNAL [vol. 45
rate.1""' Though the rate of violent crime is not low,106 the number of
murders107 and other assaults108 is, and murders of ,09 and attacks on110
officers of the law are relatively rare. Thus, our court may have con-
cluded that it was not compelled by necessity to place its "constitu-
tional imprimatur"1" upon official activity which "represents the last
step before crossing into the territory marked 'unlawful [searches and]
seizures.' "u2
At least five additional policy arguments support this conclusion.
First, the grant of stop and frisk power in Terry is alleged to be necessary
because no other weapon exists to check the "American criminal's . . .
long tradition of armed violence."113 Congress appears to be incapable
of passing meaningful gun control legislation,114 and even if it did,115
there is considerable doubt that such legislation could be enforced well
enough to significantly curtail the commission of crimes of violence.116
The Terry Court recognized this,117 and went on to attempt to fashion a
carefully limited constitutional remedy. However, the fact remains
that Terry did limit the protections previously provided by the fourth
amendment, and in doing so allowed Congress and the American citi-
zenry to avoid confronting the need to find less intrusive, more clearly
constitutional means of checking violent crime. Terry was an unsuccess-
ful attempt at a stop-gap solution; it has not caused the incidence of
violent crime to go down,"8 which was the only objective it set out to
'""'Mississippi's crime rate — 1,320.1 per 100,000 inhabitants — was the fourth lowest in
the country in 1972. Uniform Crime Reports 68-77.
'""Mississippi's rate of violent crime was 312.7 per 100,000 inhabitants (29th lowest)
in 1972. Id.
",7Three hundred and forty-eight murders and nonnegligent manslaughters were com-
mitted in Mississippi in 1972, id. at 72, as compared to 750 in the city of Detroit alone in
1973. See note 102, supra.
"lsIn Mississippi, in 1972, 7,076 violent crimes were committed. Uniform Crime Re-
ports 72.
"'"In the East South Central area, which includes Mississippi, 12 law enforcement
officers were killed by felonies or accidents in 1972. Id. at 167.
""Nine hundred and eight officers were assaulted in 1972 in the East South Central
area, the lowest number in any of the nine regions. Id.
"'Terry v. Ohio, 392 U.S. 1, 13 (1968).
"~Loyd v. Douglas, 313 F. Supp. 1364, 1372 (S.D. Iowa 1970) (describing police "stop
and question" procedure).
"Terry v. Ohio, 392 U.S. 1, 23 (1968).
'"See R. Sherrill, The Saturday Night Special (1973); cf. United States v. Cecil.
457 F.2d 1178, 1181 (8th Cir. 1972) (Heaney, J., dissenting).
""'The latest bill introduced is S. 981, 93d Cong., 1st Sess. (1973); see discussion at
Cong. Rec. § 3124-27 (daily ed. Feb. 24, 1973).
'"R. Sherrill, supra note 114.
"7392 U.S. at 24 n.21 (1968).
"In the United States 590,160 violent crimes were committed in 1968, 828,150 in 1972;
295.:', violent crimes were committed per 100,000 population in 1968, 397.7 per 100.000
1974] COMMENTS 779
accomplish. Another solution must be found.
Secondly, stop and frisk procedure is a major source of citizen re-
sentment of police."9 This is true even where police activity conforms
to Terry and the Model Rules. The problem is much greater when police,
as they frequently do,120 exceed their stop and frisk authority and in-
dulge in activity which more candidly should be called in some cases
"stop and fish,"121 and in other cases "stop and scare the hell out of."122
Judicial sanction of stop and frisk cannot help but encourage improper
official conduct. Courts presumably wish to prevent armed rebellions in
urban centers, but at the same time recognize as lawful a form of official
conduct which causes the anger and frustration which in turn is one
cause of citizen rebellion.123
Third, national authorities have documented the fact that police
officers, once they have caught a person believed to be guilty, are often
willing to "perform minor surgery upon the facts"124 when testifying in
court, in an effort to secure conviction.125 This "minor surgery" may
include a disingenuous explanation either of the police conduct during
the stop or frisk, or of the facts known to the police before they under-
took the stop or frisk. There is a particular danger of this when a tip from
an unnamed informant is alleged to have been the basis for the officer's
action. In this situation it is possible that the officer may fabricate the
informer's existence,126 or exaggerate his reliability or the quantity and
quality of the information communicated by the informant.127 Under
present law, a judge must simply assume that the police officer acted
in good faith and is telling the truth.128 The judge cannot examine the
population in 1972. Uniform Crime Reports, supra note 102, at 61. It should be noted,
however, that there has been a notable decrease in the rate of increase in violent crimes
from 1971 to 1972. Id. at 4.
"'Terry v. Ohio, 392 U.S. 1, 14-17 & nn.ll, 14, citing President's Commission on Law
Enforcement and Administration of Justice, Task Force Report: the Police 183 (1967);
Chevigny, Police Abuses in Connection with the Law of Search & Seizure, 5 Crim. L. Bull.
3, 19 (1969); LaFave, supra note 1, at 45.
l2"Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting).
l2lThe phrase is taken from LaFave, supra note 1, at 66. For documentation, see, e.g.,
Chevigny, supra note 119, at 20, 21-22, 25; Cook, Varieties of Detention, supra note 23, at
312 & n.120.
mSee, e.g., Chevigny, supra note 119, at 14, 16.
l21Terry v. Ohio, 392 U.S. 1, 14 n.ll (1968).
'-'LaFave, supra note 1, at 66 n.126.
,r,Chevigny, .supra note 119, at 5; cf. United States v. Lopez, 328 F. Supp. 1077, 1096
(E.D.N.Y. 1971); LaFave, .supra note 1, at 66 n.126.
'-"Williams v. Adams, 436 F.2d 30, 36 & n.4 (2d Cir. 1970) (Friendly, C.J., dissenting);
Chevigny, .supra note 119, at 31-32.
l27Chevigny, .supra note 119, at 31-32.
l2HMcCray v. Illinois, 386 U.S. 300 (1967).
780 MISSISSIPPI LAW JOURNAL [vol.45
alleged informant because he cannot discover his identity.129
"[Constitutional courts of this country are the acknowledged archi-
tects and guarantors of the integrity of the legal system,"130 yet in this
situation are virtually powerless to deter conduct which clearly under-
mines their own integrity.
Fourth, many, if not most, of the prosecutions for possession of
contraband found and seized pursuant to stops and frisks are for viola-
tions of drug laws,131 rather than for possession of concealed weapons.
This is so even though Terry made clear that the only justification for
stop and frisk is the protection of the police and the public. Because of
this, some commentators have urged that the exclusionary rule be ap-
plied to all items other than weapons seized in frisk situations:
[T]o exclude all contraband but weapons discovered during a
frisk should in no way frustrate legitimate police activity which is justi-
fied in this context only as a means of protecting the officer [and the
public). And under the broad reasonableness analysis adopted in
Terry, the Court would seem justified in finding a particular police
practice — the frisk — reasonable only if hedged with such a novel safe-
guard. m
Finally, though the Keys opinion does not discuss the Mississippi
Constitution, it is clear that our court has the power to interpret the
state constitution in a manner that more zealously protects the rights
of the people than does the Federal Constitution as interpreted by the
United States Supreme Court in any particular time period.133 What the
'-•'The sole exception to this rule arises when the informant was an active participant
in the crime in which the defendant is charged. Roviaro v. United States, 353 U.S. 53
(1957).
I!"L. Jaffe, Judicial Control of Administrative Action 589 (1965), quoted in Von
Sleichter v. United States, 472 F.2d 1244, 1253 (D.C. Cir. 1972) (Wright. J., dissenting).
i:"The statement was borne out by this writer's reading of hundreds of stop and frisk
cases. One judge has expressed his belief that the same is true of airport frisks. United
States v. Legato, 480 F.2d 408, 414 (5th Cir. 1973) (Goldberg, J., concurring). In airport
frisks, "out of every approximately 15 persons who are frisked one person is found with a
weapon." United States v. Lopez, 328 F. Supp. 1077, 1097 (E.D.N.Y. 1971).
mThe Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 186 (1968); accord, Raphael.
supra note 1, at 304. LaFave, who is generally for stop and frisk, believes there "would be
considerable merit" to this proposal. LaFave, supra note 1, at 65 & n. 126. But see United
States v. Lopez, 328 F. Supp. 1077, 1096, 1099 (E.D.N.Y. 1971) (dictum).
mSee Ker v. California, 374 U.S. 23, 34 (1963). See generally Project Report: Toward
an Activist Role for State Bills of Rights, 8 Harv. Civ. Rights-Civ. Lib. L. Rev. 271 (1973).
California state courts have taken the lead in this area. See, e.g., Rios v. Cozens, 9 Cal.
3d 454, 509 P. 2d 696, 107 Cal. Rptr. 784 (1973); People v. Krivda, 8 Cal. 3d 623. 504 P. 2d
457, 105 Cal. Rptr. 521 (1973); People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880. 100 Cal.
Rptr. 152, cert, denied, 406 U.S. 958 (1973). See also Mosk, The Constitution of California
in the Era of the Burger Court and States Rights, Los Angeles Daily Journal, Dec. 19. 1973.
1974] COMMENTS 781
Mississippi Supreme Court cannot do is limit the provisions of the
Federal Bill of Rights.134 Article 3, Section 23 of the Mississippi Consti-
tution guarantees the same rights as does the fourth amendment. If this
comment is correct in asserting that the extension of stop and frisk
power to Mississippi policemen would be unwise and unnecessary, arti-
cle 3, section 23 could be employed to so hold. Our court has not hesi-
tated to go beyond its federal counterpart when it has been necessary
in the past,155 and it need not and should not hesitate to do so in the
future.
Just as it is evident that "[t]he great generalities of the constitu-
tion have a content and a significance that varies from age to age,"136 it
is also evident that the age for watering down, in the name of necessity,
the guarantee of protection from unreasonable searches and seizures has
not come to Mississippi. As the foregoing quotation implies, how consti-
tutional provisions are interpreted is largely a question of policy. Since
we do not need stop and frisk, our court has rightly refused to sanction
it.
Thomas J. Ginger
Report Section, at 26-29 (author is California Supreme Court Justice). Cf. Gilbreath v.
Wallace, No. S.C. 456 (Ala. Sup. Ct., April 4, 1974) (state constitution guarantees 12-
member jury in will contest).
™See Ker v. California, 374 U.S. 23, 34 (1963).
^Compare Davidson v. State, 240 So. 2d 463 (Miss. 1970) (does not recognize "open
fields" doctrine), with Hester v. United States, 265 U.S. 57 (1924). Compare Smith v.
State, 240 Miss. 738, 128 So. 2d 857 (1961) (arrest begins when pursuit begins), with Henry
v. United States, 361 U.S. 98 (1959). Compare Tucker v. State, 128 Miss. 211, 90 So. 845
(1922), with Mapp v. Ohio, 367 U.S. 643 (1961) (Mississippi state courts adopted "exclu-
sionary rule" 39 years before Mapp commanded it).
"'B. Cardozo, The Nature of the Judicial Process 17 (1921).
CRIMINAL SENTENCING: AN OVERVIEW
OF PROCEDURES AND ALTERNATIVES
[I]n no other area of our law does one man exercise such unrestricted
power. No other country in the free world permits this condition to
exist.1
Sentencing procedure in the United States is coming under increas-
ingly harsh criticism. Reasons include the great disparity among sent-
ences2 and the unfettered discretion of sentencing judges.3 Both are
exacerbated by lack of appellate review.
Disparity can be illustrated statistically. During the 1967-68 term
of the United States District Court for the Northern District of Missis-
sippi the average prison sentence imposed for liquor law violations was
14.4 months, while during the same period in the Southern District the
average prison term imposed was only 8.5 months.4 During a 3-year
period in New York certain judges never imposed prison terms in draft
evasion cases, employing instead alternative forms of sentences; other
judges imposed prison terms 15 percent of the time; and still others
imposed prison terms in all draft evasion cases.5 A 5-year study of postal
theft cases for the Southern District of New York produced similar
results. Findings from this study revealed that one judge imposed prison
terms in 7 percent of his cases, another in 29.2 percent, and another in
50 percent."
Abuse of discretion by sentencing judges produces seemingly inap-
propriate sentences at each end of the spectrum: while one Mississippi
defendant received an 8-year prison term for stealing a credit card and
charging goods valued at $37.75,7 nine others convicted of firebombing
homes of blacks (therefore facing possible death sentences) were placed
on probation.8
'ABA Project on Minimum Standards For Criminal Justice— Standards Relating
To Appellate Review of Sentences (Official Draft 1968). [hereinafter cited as ABA
Standards Appellate Review of Sentences (Official Draft 1968)].
2See, e.g., Bennett, Countdown for Judicial Sentencing, 25 Fed. Prob. 22-24. 1961:
Frankel, Lawlessness in Sentencing, 24 U. Cin. L. Rev. 1, 7, (1972); Comment, Discretion
In Felony Sentencing— A Study of Influencing Factors, 48 Wash. L. Rev. 857 (1973).
*E.g., M. Frankel, Criminal Sentences 5 (1973); Sobeloff, Appellate Review of
Sentences, 32 F.R.D. 249, 268 (1962).
4Fed. Bureau of Prisons, Nat'l. Prison Statistics, Table B-7 (1967-1968).
5H. Seymour, Jr., 1972 Sentencing Study for the Southern District of New York, 45
N.Y. S.B.J. 162, 166 (1972).
"Id.
7Bence v. State, 240 So. 2d 630 (Miss. 1970).
''Rubin, Disparity and Equality of Sentences — A Constitutional Challenge, 40 F.R.D.
55, 69 (1967).
782
1974] COMMENTS 783
Although realizing the inequities of the present sentencing system,
the Mississippi Supreme Court has regretfully concluded: "We do not
have the authority to reduce the sentence as we would prefer to do."9
Congress has displayed dissatisfaction with sentencing practices,
but repeated attempts to ameliorate the problem through legislation
have failed.10 Appeals from within the legal community for appellate
review" and alternatives to present sentencing practices have also met
with little success.12 This comment will examine the objectives of sent-
encing and the current federal and state sentencing practices, explore
judicial response to new proposals intended to enhance uniform sentenc-
ing, and, finally, discuss the applicability of these proposals to current
Mississippi sentencing practices.
I. Objectives of Sentencing
Philosophies emerging from the Age of Enlightenment13 put the
emphasis in sentencing procedure on the flexibility of sentence imposi-
tion within fixed minimum and maximum prison terms.14 The goal of
this "classical school"15 was to develop a relationship between the na-
ture of the offense and the severity of the penalty.16 To attain this goal,
"Bence v. State, 240 So. 2d 630, 632 (Miss. 1970).
"E.g., S. 2228, 92d Cong., 1st Sess. (1971); H.R. 5180, 91st Cong., 1st Sess. (1969);
S. 1561, 91st Cong., 1st Sess. (1969); S. 1561, 91st Cong., 1st Sess. (1969); H.R. 6188, 91st
Cong., 1st Sess. (1969); S. 1540, 90th Cong., 1st Sess. (1967). See Comment, Appellate
Review of Sentences: A Survey, 17 St. Louis U.L.J. 221, 229 (1972).
uSee, e.g., ABA Standards— Appellate Review of Sentences (Official Draft 1968);
ABA Project On Minimum Standards For Criminal Justice, Sentencing Alternatives
and Procedures (Tentative Draft 1967); Model Penal Code §§ 6.01-7.08 (P.O.D. 1962);
National Council On Crime and Delinquency— Advisory Council of Judges, Model
Sentencing Act (1963).
l2Although some proposals are more than 10 years old they have gained little recogni-
tion by state or federal courts, and generally have not been adopted.
i:,The Age of Enlightenment, beginning in the mid-eighteenth century, was character-
ized by a mixture of different tensions and changing views:
The matrix included, among other elements, class interests, political and eccle-
siastical authority, religious convictions, the progress of science, the challenge
to values, changing views of history, new economic theories, competing views of
man, political dissatisfaction. The tensions generated involved the role of nature
and culture, the claims of individuals and society, freedom and order, tradition-
alism and revolt.
L. Crocker, The Age of Enlightenment 2 (1969).
14Comment, Criminal Procedure — Probable Cause and Due Process at Sentencing, 50
N. Carolina L. Rev. 925, 927 (1972).
l5This "classical school" consisted of penologists advocating deterrence of crime as the
major objective of punishment, instead of retribution. See, e.g., E. Green, Judicial Atti-
tudes in Sentencing 2 (1961).
"Id.
784 MISSISSIPPI LAW JOURNAL [vol. 45
the classicalists shifted emphasis from retribution to deterrence as a
function of sentencing.
This classical view was challenged by persons advocating the reha-
bilitation of the offender as the primary goal of sentencing.17 Currently
in vogue is the concept of rehabilitation through individualization of
sentencing,18 with deterrence playing an important but secondary role.19
Two additional, though less important, considerations are isolation and
retribution.20
It is not within the scope of this comment to argue the relative
merits of these divergent views of sentencing. Rather, the pattern as-
sumed will be that underlying the Model Penal Code21 and Model Sent-
encing Act;22 that is, that there exists a class of offender for whom
custodial sentencing is appropriate,23 and another class which could
profit from rehabilitation.24 Whether rehabilitation is currently avail-
able in a prison context is problematic. It is submitted that insofar as
it is not available, total custodial sentencing should not be resorted to,
but rather, that rehabilitatively oriented alternatives to prison terms
should be sought; and further, that only through some continuing em-
phasis on a rehabilitative goal for at least some offenders will sentencing
continue to move toward this most constructive goal.
II. The Federal Courts and the Doctrine of Nonreview
Refusal to review criminal sentences at the federal appellate level
is long standing.25 This concept, now labeled the "doctrine of nonrev-
iew," originated with an 1891 statute26 omitting a phrase previously
allowing federal appellate courts to grant final judgment.27 The omission
was interpreted as signifying congressional disapproval of sentence re-
l7/d.
"Williams v. New York, 337 U.S. 241, 248 (1949).
I9E. Green, supra note 15, at 3.
™E.g., Kaufman, Appellate Review of Sentencing, 32 F.R.D. 249, 258 (1962).
2IModel Penal Code (P.O.D. 1962).
"National Council On Crime And Delinquency— Advisory Council of Judges,
Model Sentencing Act (1963).
23M. Frankel, supra note 3, at 89.
2iId.
25Gurera v. United States, 40 F.2d 338, 340-41 (8th Cir. 1930). See also United States
v. Tucker, 404 U.S. 443, 447 (1972); Gore v. United States, 357 U.S. 386, 393 (1958);
United States v. Rosenberg, 195 F.2d 583, 604 (2d Cir. 1952), cert, denied, 344 U.S. 838
(1952).
2B26 Stat. 826 (1891).
^20 Stat. 354 (1879). This omitted phrase stated: "And in case of an affirmance the
circuit court shall proceed to pronounce final sentence and to award execution thereon."
Id. (emphasis added).
^Freeman v. United States, 243 F. 353, 357 (9th Cir. 1917).
1974] COMMENTS 785
There are presently three exceptions to the doctrine of nonreview29
and potential for a fourth:30 (1) sentences will be overturned when con-
stitutional violations accompanying sentencing procedure are identi-
fied;31 (2) sentences imposed mechanically {e.g., without consideration
of the nature of the offense and the defendant's character) may also be
overturned;52 (3) review has been justified through an inherent supervi-
sory power over administration of justice in the lower federal courts;33
and (4) since Section 2106 of Title 28 of the United States Code34 enables
circuit courts to modify sentences on appeal, it has been suggested that
this statute could be interpreted to permit review of sentences.35 This
opportunity, however, has not been grasped by the courts.36
III. The State Courts and Sentence Review
Some states37 have taken steps toward review with the aim of devel-
2B33 U. Pitt. L. Rev. 917, 920-26 (1972).
M)See, e.g., id. at 926.
"Townshend v. Burke, 334 U.S. 736, 741 (1948). The circuit courts, as well as the
Supreme Court, have overturned sentences because of constitutional violations. E.g.,
Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973); United States v. Weston, 448 F.2d 626 (9th
Cir. 1971).
■"See, e.g., Woosley v. United States, 478 F.2d 139, 144 (8th Cir. 1973); United States
v. McKinney, 466 F.2d 1403 (6th Cir. 1972); United States v. Charles, 460 F.2d 1093 (6th
Cir. 1972); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. Wiley,
267 F.2d 453, 455 (7th Cir. 1959).
'■'Yates v. United States, 356 U.S. 363, 366 (1958). See also United States v. West
Coast News Co., 357 F.2d 855 (1966); cf. Roth v. United States, 255 F.2d 441 (2d Cir. 1958).
For a discussion of supervisory powers of the Supreme Court, see Hill, The Bill of Rights
and the Supervisory Power, 69 Colum. L. Rev. 181 (1969).
:!428 U.S.C. § 2106 (1970). Section 2106 provides:
The Supreme Court or any other court of appellate jurisdiction may affirm,
modify, vacate, set aside, or reverse any judgment, decree of order of a court
lawfully brought before it for review, and may remand the cause and direct the
entry of such appropriate judgment, decree, or order, or require such proceed-
ings to be had as may be just under the circumstances.
Id.
3533 U. Pitt. L. Rev. supra note 29, at 926.
™See Smith v. United States, 273 F.2d 462, 467-68 (10th Cir. 1959), cert, denied, 363
U.S. 846 (1960): "Until the Supreme Court sees fit to hold that Section 2106 applies in
such cases, we think this court should apply what appears to be the fixed rule." 273 F.2d
at 468. United States v. Hodges, 436 F.2d 676, 678-79 (10th Cir. 1971).
"Alaska, Alaska Stat. § 12.55.120 (Supp. 1972); Arizona, Ariz. Rev. Stat. Ann.
§ 13-1717 (1956); Arkansas, Ark. Stat. Ann. § 27-2144 (1962); California, Cal. Penal
Code § 1260 (West 1970); Colorado, Colo. Rev. Stat. § 40-1-509 (1963); Connecticut,
Conn. Gen. Stat. §§ 51-194 to -96 (1960); Hawaii, Hawaii Rev. Stat. § 641-24 (1968);
Idaho, Idaho Code Ann. § 19-2821 (1948); Illinois, III. Rev. Stat. Ch. 110A, § 615(b)
(1968); Indiana, Ind. Ann. Stat. § 9-2321 (1956); Iowa, Iowa Code § 793.18 (1971); Kan-
sas, Kan. Stat. Ann. art. 36, § 22-3605 (1971); Maine, Me. Rev. Stat. Ann. tit. 15, § 2141
786 MISSISSIPPI LAW JOURNAL [vol. 45
oping uniform sentencing criteria. These steps have led to the formula-
tion of the five identifiable categories of state programs discussed
below.38
A. The New Jersey Experiment and the Single Sentencing Judge
Appellate state courts may review trial court discretion in sentenc-
ing in New Jersey. This practice, a development of case law, originated
in the 1961 case of State v. Johnson™ wherein the Superior Court of New
Jersey concluded "our examination of all the testimony and the present-
ence reports satisfies us that the consecutive sentences imposed . . .
were excessive . . . [and] should have been made concurrent."40
New Jersey has instituted single sentencing judges in one field (syn-
dicate gambling offenses) as an experiment in uniformity of sentencing.
A single judge in each county sentences all syndicate gambling offenders
in that county.41 Although the system admittedly precludes the sentenc-
ing judge from observing courtroom demeanor of offenders in many
cases,42 the New Jersey Supreme Court felt that "the demeanor of the
defendant on the stand, if he takes it, ordinarily is not critical. The feel
of one case is pretty much the feel of most others."43 The experiment is
limited to gambling cases because "the details of the criminal event are
pretty much the same" among such cases.44 Since this similarity is
not characteristic of all crimes, it would not be proper to conclude that
a single judge system would be effective in all other types of cases.
Further, observation of courtroom demeanor may be more critical in
(Supp. 1973); Maryland Md. Ann. Code art. 26, §§ 132-388 (1973); Massachusetts, Mass.
Ann. Laws ch. 278, § 28 (1972); Missouri, Mo. Sup. Ct. Rs. 27.04, .05, .06 (1953); Mon-
tana, Mont. Rev. Codes Ann. tit. 95, §§ 2501-04 (1969); Nebraska, Neb. Rev. Stat. § 29-
2308 (1965); New Jersey: State v. Johnson, 67 N.J. Supp. 414, 170 A.2d 830 (App. Div.
1961); New York, N.Y. Consol. Law ch. 11-A, § 470.15 (West 1971); Ohio, Ohio Rev. Code
Ann. § 2953.07 (1954); Oklahoma, Okla. Stat. Ann. tit 22, § 1066 (1958); Oregon, Oreg.
Rev. Stat. § 138.050 (1971); Pennsylvania, Pa. Stat. tit. 17, § 211.504 (1962); Tennessee,
Brooks v. State, 187 Tenn. 361, 215 S.W.2d 785 (1948); Wisconsin, Wis. Stat. Ann.
§ 251.17 (1971). Statutes are cited in Comment, Appellate Review of Sentences: A Sur-
vey, supra note 10, at 252-62.
38Comment, Appellate Review of Sentences: A Survey, supra note 10, at 232.
:1!,67 N.J. Super. 414, 170 A. 2d 830 (1961).
4n170 A. 2d at 842.
"State v. DeStasio, 49 N.J. 247, 254, 229 A.2d 636, 640, cert, denied, 389 U.S. 830
(1967). The single sentencing judge originated from an administrative policy decision of
New Jersey judges. Id.
42The observation of the defendant by the trial judge appears to be a strong contention
of opponents to appellate review of sentencing. E.g., Woosley v. United States, 478 F.2d
139, 144 (9th Cir. 1973); Brewster, Appellate Review of Sentences, 40 F.R.D. 79, 82 (1965).
"State v. DeStasio, 49 N.J. 247, 254, 229 A.2d 636, 640 (1967).
Hd.
1974] COMMENTS 787
other types of cases, so that its loss might diminish any effectiveness of
individualized sentencing.
B. Appellate Review Created by Statute and the
Appellate Review Court
Differing review procedures have been created by statute in several
jurisdictions.43 Of particular interest is the method adopted by Connect-
icut,46 Maine,47 Maryland,48 and Massachusetts.49 These states empower
either panels or special courts to review sentences. In Maryland, for
example, any person sentenced to serve 2 years or more without suspen-
sion or sentenced to death is entitled of right to a sentence review by a
three-judge panel convened from the judicial circuit in which the
sentencing court sits.50 Cases interpreting the Maryland statute reveal
that its major effect is to review justness of punishment; to that end
panels have increased as well as decreased sentences on review.51
The panels have been criticized as potentially subjecting the system
to a flood of frivolous appeals;52 however, fear of increased sentences
should limit such a flood. It has also been argued that sentencing is
discretionary, not a matter of law, and should be left exclusively to the
trial judge.53 Finally, opponents fear that the panel's lack of opportunity
45See authorities cited note 37 supra.
4"Conn. Gen. Stat. Ann. §§ 51-194, -196 (1960).
"Me. Rev. Stat. Ann. tit. 15, § 2141-44 (Supp. 1965).
wMd. Ann. Code art. 26, §§ 132-38 (1973).
4"Mass. Ann. Laws ch. 278, § 28 (1972).
5"Md. Ann. Code art. 26, §§ 132-38 (1973).
5lRobinson v. Warden, Md. House of Correction, 455 F.2d 1172, 1174-75 (1972). When
a defendant faces the possibility of a harsher sentence upon exercising a right of review,
constitutional problems are raised. See North Carolina v. Pearce, 395 U.S. 711 (1969)
(upholding vacation of sentence on due process grounds when much harsher sentence
was imposed after appeal and trial de novo, and no "objective information concerning
identifiable conduct on the part of the defendant occurring after the time of the original
sentencing proceeding" was reflected in the record. Id. at 726); Faye v. Noia, 372 U.S. 391
(1963) (granting habeas corpus despite no exhaustion of state remedies when those reme-
dies were made effectively unavailable by threat of death penalty). The Supreme Court
has never considered a sentence increased by a review board; it has held, however, "that
neither the double jeopardy provision nor the Equal Protection Clause imposes an abso-
lute bar to a more severe sentence upon reconviction." North Carolina v. Pearce, supra
at 723. In holding that increase of sentence by the Maryland sentence review board did
not violate due process, the Fourth Circuit Court of Appeals said, "Pearce's ruling on due
process is, however, not altogether inapplicable to sentence review. Though a state need
not provide sentence review, if it does, it may not discourage applications for relief by
vindictively imposing harsher sentences on those who exercise their statutory right."
Robinson v. Warden, 455 F.2d 1172, 1177 (1972).
52ABA Standards— Appellate Review of Sentences (Official Draft 1968) at 5.
53/d.
788 MISSISSIPPI LAW JOURNAL [vol.45
to view courtroom demeanor of defendants could diminish its ability to
select the most appropriate sentence.54
C. The Alaskan Review Procedure
The Alaskan review procedure is also statutory, providing for state
supreme court review of sentences appealed by the defendant, or by the
state if the sentence is alleged to be too lenient.55 If the state appeals,
the court may only affirm or overturn the sentence unless the defendant
also appeals, in which case the court may increase or decrease the sent-
ence.5"
D. Extrajudicial Sentencing
California57 and Washington58 have given extrajudicial boards
power to fix sentences. California's Adult Authority may set maximum
and minimum sentences for offenders only if the trial judge deems im-
prisonment to be appropriate.59 Underlying this "combination of
functions" is the idea that while the trial judge is in the best position
to know whether imprisonment should be imposed, the members of the
Authority, with their penological backgrounds, are best qualified to
evaluate the needs of the offender.60 The California system is founded
on a rehabilitative norm: the board may grant probation to offenders
when it deems them to be "rehabilitated,"61 but not before.62
The California system has been attacked63 by opponents charging
that such boards may set, reset, and change again the same sentence,
giving the board too much power, and potentially demoralizing prison-
ers.64 A second, more recent attack on the boards65 resulted from the
California Supreme Court's decision in In re Lynch.66 Lynch spent 5
"Walsh, Appellate Review Of Sentences, 32 F.R.D. 249, 277 (1962).
•'"'Alaska Stat. tit. 12, § 12.55.120, -.120(a), -.129(b) (1972).
""'Alaska Stat. tit. 12, § 12.55.120(b) (1972).
"Calif. Ann. Code § 5077 (1970).
"Wash. Rev. Stat. Ann. § 9.95.040 (1961). See also 11 Am. Crim. L. Rev. 695 (1973).
•"'"Calif. Ann. Code § 5075 (1970); 11 Am. Crim. L. Rev., supra note 58. at 709: 10 San-
Diego L. Rev. 793, 800 (1973).
R0Frankel, Lawlessness in Sentencing, 41 U. Cinn. L. Rev. 1, 29-34 (1972).
Hd.
«2Id.
,i:1/d.; Rubin, supra note 8, at 57. See also, J. Mitford, Kind and Usual Punishment
in California, Atl. Monthly, March 1971 at 45. In her attack on the California system.
Jessica Mitford points out that the average time spent with a prisoner by the Adult
Authority is 17 minutes and that since the adoption of the system the average sentence
served by a felony first offender was 36 months— the highest in the nation. Id. at 47.
R1J. Mitford, supra note 63, at 47. See Frankel, supra note 60; Rubin, supra note 8.
ft510 San Diego L. Rev., supra note 59.
"8 Cal. 3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972).
1974] COMMENTS 789
years in prison for indecent exposure, during which time the Adult Au-
thority rejected his plea for sentence reduction four times before the
supreme court, finding his sentence excessive, granted his writ of habeas
corpus. In reviewing this decision, one authority has stated: "in a very
real sense it was the action of the Adult Authority which was reviewed
because the cruel or unusual punishment issue would never have arisen,
but for its inaction."67 Although such a result is an indictment of the
functioning of the board in at least an administrative sense, it does not
impeach the utility of such boards in enhancing uniformity of sentence.
Lynch also illustrates the value of establishing procedures for the review
of decisions of such boards, so that extraordinary and time consuming
relief need not be sought.
E. Sentencing Review by General Statute
Some state legislatures have enacted a means of appellate review
through statutes worded similarly to Section 2106 of Title 28 of the
United States Code.6* These statutes generally allow the courts to "af-
firm, reverse, or modify" judgments.69 It appears that the state courts
have not followed the federal judiciary's lead in refraining from inter-
preting these laws as allowing appellate review of sentences.70
Such statutes may be used both to cure abuses of trial judge discre-
tion and to enhance uniformity of sentences granted by the lower court.
It would seem preferable, however, to provide for these goals at the trial
level, thereby avoiding the expense and the overburdening of court
dockets caused by frequent review. Upon the alleviation of this need for
curative review, the statute could assume a "back-up" status.
IV. New Proposals in Criminal Sentencing
A. The Model Sentencing Act, the Model Penal Code,
and Categorization of Felonies
The National Council on Crime and Delinquency proposed the
Model Sentencing Act (MSA) as an alternative to present policies. The
MSA was intended to be:
liberally construed to the end that persons convicted of crime shall be
dealt with in accordance with their individual characteristics, circum-
stances, needs and potentialities as revealed by case studies; that dan-
gerous offenders shall be correctively treated in custody for long terms
as needed; and that other offenders shall be dealt with by probation,
fl710 San Diego L. Rev. supra note 59, at 812.
B828U.S.C. § 2106 (1970).
mSee, e.g., Iowa Code § 793.18 (1971).
70Comment, Appellate Review of Sentences: A Survey, supra note 10, at 252-53.
790 MISSISSIPPI LAW JOURNAL [vol. 45
suspended sentence, or fine whenever such disposition appears practic-
able and not detrimental to the needs of public safety and the welfare
of the offender, or shall be committed for a limited period.71
The MSA goes on to provide the following comprehensive definition of
"dangerous offender":
(a) [one who] inflicted or attempted to inflict serious bodily harm,
and the court finds that he is suffering from a severe personality disor-
der indicating a propensity toward criminal activity.
(b) The defendant is being sentenced for a crime which seriously en-
dangered the life or safety of another, has been previously convicted of
one or more felonies not related to the instant episode, and the court
finds that he is suffering from a severe personality disorder indicating
a propensity toward criminal activity.
(c) The defendant is being sentenced for the crime of extortion, com-
pulsory prostitution, selling or knowingly and unlawfully transporting
narcotics, or other felony, committed as a part of a continuing criminal
activity in concert with one or more persons.72
Under the MSA "dangerous" offenders face jail terms of up to 30 years;
while Section Nine of the MSA, which provides for nondangerous sent-
encing including suspended sentences and probation, permits jail terms
of up to 5 years. It appears, therefore, that the MSA employs a mix of
custodial sentencing, for the most "dangerous" offenders, and indivi-
dualized, rehabilitative sentencing (with the emphasis on alternatives
to incarceration) for the less dangerous offender for whom such treat-
ment would appear constructive. At the same time, substantial prison
terms are available for lesser offenders who, although not "dangerous,"
are presumably not appropriate subjects for rehabilitation. In effect this
system categorizes felonies according to the degree of violence of the
offense and the individual characteristics of the offender. This approach
strikes a balance between societal interests and provision for rehabilita-
tion of appropriate prisoners.
The American Law Institute has also drafted a model code which
categorizes felonies.73 The Model Penal Code (MPC) provides for three
degrees of felonies: (1) first degree, carrying a prison term of not less
than 5 to 10 years, and a maximum of 20 years or life;74 (2) second
degree, with a minimum of 1 to 3 years and a maximum of 10 years;75
71National Council on Crime and Delinquency— Advisory Council of Judges, Model
Sentencing Act § 7 (1963).
12Id.
"Model Penal Code § 6.06 (P.O.D. 1962).
uId. § 6.06(1).
nId. § 6.06(2).
1974] COMMENTS 791
and (3) third degree, with a 1-year minimum, maximum 2 years in
prison, and a 5-year total sentence maximum.76 A special section pro-
vides extended sentences in cases of recidivism.77 The MSA and the
MPC both employ indeterminate sentencing, but only the MPC requires
that minimum as well as maximum periods of internment be specified.
The strict rehabilitative sentencing theory underlying the MSA rejects
minimum sentences on grounds that the prisoner might become rehabil-
itated and thus eligible for parole before the term of the minimum
sentence. The MPC, on the other hand, appears to strike its balance
somewhat more in favor of a custodial norm, thereby providing a larger
measure of protection to society although at some potential rehabilita-
tive cost. Both plans also emphasize use of parole, suspended sentences,
and other alternatives to incarceration,78 reflecting the attitude of many
authorities that current prison terms are generally too long.79
By categorizing offenses and delineating sentences pursuant to such
categorization, both proposals limit judicial discretion which operates
to enhance uniformity of sentencing. While individualized, rehabilita-
tive sentencing may appear at odds with uniformity of sentences, it is
submitted that a carefully applied uniform theory of sentencing — not
simple similarity of sentences — is the true goal of "uniform" sentencing,
and that this goal may be achieved in a variable-sentence context. The
MSA reflects this approach, eschewing minimum sentences and thereby
allowing maximum sentence flexibility. The MPC, however, provides
for more mechanically uniform sentences through its use of minimum
sentences in each category where prison detention is deemed appropri-
ate. Some element of retribution may also be in operation.
B. Sentencing Institutes
Congress created sentencing institutes to promote uniformity in
sentencing.80
The Attorney General and/or the Chief of each circuit may at any time
request . . . the Judicial Conference to convene such institutes and
joint councils for the purpose of studying, discussing, and formulating
the objectives, standards, and criteria for sentencing . . . .8I
The first institute was held in 1959. Results of the institutes are reported
uId. § 6.06(3).
"/d. § 6.07.
nE.g., Model Penal Code § 6.10; National Council On Crime And Delinquency,
Advisory Council Of Judges, Model Sentencing Act § 1 (1963).
79E.g., ABA Project On Minimum Standards For Criminal Justice; Standards-
Sentencing Alternatives and Procedures 56 (Tentative Draft 1967).
8028U.S.C. § 334 (1964).
"Id.
792 MISSISSIPPI LAW JOURNAL [vol.45
to all members of bench and bar in Federal Rules Decisions.82 While
these institutes have proven helpful in increasing judicial awareness of
weaknesses in current sentencing procedure, their value must not be
exaggerated. They occur too infrequently, and have been said to be
ineffective in changing philosophies of attending judges.83
C. Sentencing Councils
Sentencing councils are a highly successful innovation in develop-
ing sentencing theory. The program of appointing sentencing councils
began in the federal courts of the Eastern District of Michigan, and has
spread to two other federal district courts and two state courts.84 These
councils consist of the sentencing judge and two other judges who sit in
the same jurisdiction.85 Each judge writes a sentence recommendation
after considering presentence reports and other pertinent material.8"
The sentencing judge may pronounce any sentence he feels is appropri-
ate, but it appears that the opinions of the other judges are carefully
considered.87 The councils have enhanced uniformity of sentence88 and
have aided judges in deciding which criteria should be influential in the
sentencing decision.89
[Of] factors presently considered, most significant are the offenders'
prior record, family responsibility, work record, the likelihood that the
defendant will respond to probation, and whether custody is required
for either rehabilitation or for the protection of the public.90
The councils help make new judges aware of alternatives to com-
mitment and offer them an opportunity to interact with fellow members
of the bench.91 Since these councils work to train judges directly in use
of discretion and uniformity of sentencing, review of sentencing should
s2Youngdahl, Development and Accomplishments Of Sentencing In the Federal
Judicial System, 45 Neb. L. Rev. 513, 518 (1966).
H:iM. Frankel, supra note 3, at 64.
Mll Am. Crim. L. Rev., supra note 58, at 697. The two other federal district courts
are the District Court for the Eastern District of New York and the District Court for the
Northern District of Illinois. The two state courts are the New York Supreme Court for
Bronx County and the Superior Court for the District of Columbia.
'"Levin, Toward A More Enlightened Sentencing Procedure, 45 Neb. L. Rev. 499, 503-
04 (1966).
MId.
H7d. at 505-06; Zavatt, Proceedings of the Institute On Sentencing, 54 F.R.D. 285, 333-
37 (1968).
""Zavatt, supra note 87.
*9Levin, supra note 85, at 505.
wId. at 508.
91 Zavatt, supra note 87, at 337.
1974] COMMENTS 793
decline in importance. Their responsiveness to a particular sentencing
norm will depend upon the policies most favored in the jurisdiction in
which the council sits since the council format does not inherently suit
one theory of sentencing better than any other.
In spite of the advantages mentioned above, sentencing councils do
have serious mechanical drawbacks. For instance, where one judge sits
for an entire district, or where many miles separate judges, the system
may be physically impractical.92 A more serious problem, however, is
that the councils occupy too much of the judges' time. In this day of
swollen dockets, this may be a fatal drawback.93
D. Equal Protection and Sentencing
Some defendants94 are now claiming that differing sentences for
similar offenses violate the equal protection clause of the 14th amend-
ment.95 If accepted and applied at face value, this allegation would
greatly curtail use of individualized sentencing.
Should disparities in sentencing not be rationally related to a legiti-
mate governmental interest, or should a fundamental individual right
be infringed upon in favor of a less than compelling state interest, relief
under the equal protection clause would appear justified. With regard
to the latter test, the Burger Court has manifested its unwillingness to
add to the list of interests considered fundamental,9" so that unless the
sentencing disparity could be linked to some interest already labeled
fundamental, this test would not be invoked. With regard to the former
test, a rational state interest might be found in the enhancement of
chances for rehabilitation of a particular prisoner,97 or in the protection
of the public from a particularly dangerous one.98
E. The Indeterminate Sentence
The indeterminate sentence is one having a fixed maximum term
and contemplating earlier release should the parole board (or other ap-
propriate authority) determine that the offender has been rehabili-
tated.99 Proponents of the concept argue that the chance of early release
92Levin, supra note 85, at 508.
mId.
!MUnited States v. McCord, 466 F.2d 17 (2d Cir. 1972); Florida ex rel. Thomas v.
Culver, 253 F.2d 507 (5th Cir. 1958).
!,r,U.S. Const, amend. XIV.
9fiLindsey v. Normet, 405 U.S. 56 (1972); Richardson v. Belcher, 404 U.S. 78 (1972);
see Gunther, The Supreme Court 1971 Term, 86 Harv. L. Rev. 1, 12 (1972).
"Comment, The Emergence of Individualized Sentencing, 45 Temple L.Q. 351, 358
(1971).
9"Id. at 359, 360.
"Frankel, supra note 60, at 29.
794 MISSISSIPPI LAW JOURNAL [vol. 45
encourages prisoners to welcome and strive for rehabilitation, while
fixed sentences, by divorcing reward from desired conduct, promote
cynicism and noncooperation.
It has been seen that both the Model Sentencing Act and Model
Penal Code make provision for indeterminate sentencing while provid-
ing for custodial sentencing of "dangerous" offenders. The Model Act,
by calling for no minimum prison terms, is more indeterminately ori-
ented. It allows maximum application of the theory that a prisoner
should be released as soon as he is determined to be rehabilitated.100 The
Model Penal Code, on the other hand, provides a custodial, society-
protective period of incarceration for all offenders for whom jail terms
are considered appropriate.101
Such indeterminate sentencing is presently under attack102 as being
ambiguous and inconsistent; and further, on the basis that absolute
adherence to this norm presumes all criminals to be ill and appropriate
subjects for rehabilitative efforts.103 For an indeterminate system to be
meaningful it must be shown that:
(1) The person has some identifiable disorder apart from the mere
biographical datum of his offense;
(2) the disorder in some verifiable way is causally related to the of-
fense;
(3) the penologists or judges or somebody in authority knows some
way and place for treatment of the disorder.104
The last of the above criteria has been under particularly strong attack.
The sentence purportedly tailored to the cherished needs of the individ-
ual turns out to be a crude order for simple warehousing. The prison
characteristically has no treatment facilities of any substantial nature.
The means for rehabilitation, undefined and probably unknown, are
not at hand.105
Thus both the theory and application of indeterminacy are under
attack. With regard to the theory, it would seem beyond dispute that a
class of offender exists for which rehabilitation is not a realistic goal.106
For this class, deterrence (and isolation) would seem appropriate, and
therefore, so would custodial sentencing. It would seem beyond the com-
mtE.g. , National Council On Crime and Delinquency, Advisory Council of Judges.
Model Sentencing Act §§ 1, 9 (1963).
""Model Penal Code § 6.06-.07 (P.O.D. 1962).
mE.g., M. Frankel, supra note 3, at 88.
mId. at 88, 89.
mId. at 89, 90.
mId. at 93.
mId. at 89.
1974] COMMENTS 795
petence of the legal profession, however, to assume that all criminals fall
into such a class. There obviously are other criminals who can respond
to rehabilitation. It is toward this class that the rehabilitative policies
of indeterminacy are directed.
Given that there is such a class, how is it identified, and how are
its members to be treated? The lack of convincing answers to these
questions fuels attacks upon the application of indeterminacy. Some
such systems have even backfired. For example, the California system,
intended to promote fairness in sentencing, worked so poorly that the
prisoners themselves requested its dissolution.107 Lack of immediate an-
swers, however, should not discourage attention to what is potentially
the most constructive mode of sentencing. To abandon indeterminacy
altogether would be to abandon as many opportunities as there are
appropriate subjects for rehabilitation. Systems such as the two model
proposals already discussed which balance provisions for societal protec-
tion against provisions for indeterminacy would seem to take the most
profitable long-term view relative to society's best interest.
For these reasons, indeterminacy should not be confused with dis-
parity of sentencing. It should be clear that a uniform application of
indeterminacy is an equitable form of sentencing. Further, where judi-
cial discretion is reviewed, the reviewing body should take care to evalu-
ate the same criteria taken into consideration by the trial judge in deter-
mining an appropriate indeterminate sentence for a particular offender.
F. Appellate Review of Sentence: The ABA Proposal
The American Bar Association has advocated review of sentences
through the normal appellate process.108 The purposes of review would
be to:
(i) correct the sentence which is excessive in length, having regard to
the nature of the offense, the character of the offender, and protection
of the public interest;
(ii) facilitate the rehabilitation of the offender by affording him an
opportunity to assert grievances he may have regarding his sentence;
(iii) promote respect for law by correcting abuses of the sentencing
power and by increasing the fairness of the sentencing process; and
(iv) promote the development and application of criteria for sentenc-
ing which are both rational and just.109
These objectives reveal concern with not only disparate and excessive
sentences but with rehabilitation, declining respect for the law, and
in7J. M it ford, supra note 63, at 47.
lftSABA Standards— Appellate Review of Sentences § 2.1 (Official Draft 1968).
mId. § 1.2.
796 MISSISSIPPI LAW JOURNAL [vol. 45
development of rational criteria in sentencing.
The American Bar Association Standards Relating to Appellate
Review of Sentences110 rejects establishment of separate appellate courts
for sentencing because such a program might fragment the appellate
courts'" as well as be prohibitively expensive. Under the ABA plan an
individual would have an appeal by right,112 and the right to appointed
counsel if necessary.113 In courts of more than three judges, the plan
permits sentencing councils of three judges.114 The offender would begin
serving his sentence despite his appeal, unless granted bail.115
The tentative draft did not allow increases in appealed sentences;11"
it was feared that the possibility of increased sentences would restrict
the number of appeals. On the other hand, it was feared that inability
of the court to increase the sentence might encourage frivolous ap-
peals.117 The final draft omitted the prohibition of increases.118
The ABA proposal would provide uniformity of sentencing and a
check on trial judge discretion in the same manner that the present
appellate system performs those functions in application of the laws.
The proposal is not totally comprehensive; however, it does not provide
for enhancement of these objectives through the training of the trial
bench. Such training would reduce the need for review, thereby reducing
the increase in workload that the ABA proposal would represent for the
appellate bench.
V. Proposed Revisions in Sentencing in Mississippi
As shown by the examples at the beginning of this comment, Mis-
sissippi is not an exception to complaints of a national trend toward
disparate and excessive sentences.119 Further, the Mississippi Supreme
Court, as mentioned previously, has refused to review sentences.120 "One
mId. § 2.1.
mId. § 4.
"2M § 2.2. (b) (ii).
,13/d. § 2.2 (b) (iii).
luId. § 2.2 (b) (viii).
mId. § 2.2 (b) (ix.).
""ABA Project on Minimum Standards for Criminal Justice, Standards Relating
to Appellate Review of Sentences § 3.4 (a) (Tent. Draft 1967).
"7/d. at 5.
"*ABA Standards— Appellate Review of Sentences §§ 2, 3 (Official Draft 1968).
II!,E.£., Bence v. State, 240 So. 2d 630 (Miss. 1970). See also authority cited note 4
supra.
l2nBarnes v. State, 220 Miss. 248, 251, 70 So. 2d 920 (1954). Alabama, Florida. Georgia,
Kentucky, Louisiana, Michigan, Minnesota, North Dakota, South Dakota, and Texas also
refuse to grant appellate review of sentences. Delaware, Nevada, New Hampshire, New
Mexico, North Carolina, Rhode Island, South Carolina, Utah, Vermont, Virginia, Wash-
ington, West Virginia, and Wyoming appear to be undecided on the issue of appellate
1974] COMMENTS 797
of the most important functions of the circuit judge in criminal cases is
to determine punishment of the accused. His actions in this regard are
not reviewable."121 A new approach to sentencing in Mississippi should
be taken contemplating uniformity and appropriateness of punishment,
and should be pursuant to a rational theory of sentencing. The following
approach, based on the basic theories underlying the Model Penal Code,
the Model Sentencing Act, and the ABA Standards is suggested: A mix
of society-protective custodial sentencing with indeterminancy, based
on a categorization of felonies. In addition, alternatives to imprisonment
should be emphasized for the less "dangerous" categories.
A necessary first step to such an approach would be review of the
criminal statutes to ensure that statutory penalties bear a rational rela-
tion to offenses for which they are imposed.122 Additionally, the statutes
can be used to aid judges in determining the appropriate criteria to
consider when making the sentencing decision.
Fixed minimum prison terms which appear in the statutes123 should
be reevaluated in terms of their consistency with the rehabilitative
norm, insofar as it is adopted by the State as an element of sentencing
theory. Alternatives to minimum sentences and to jail terms generally
should be explored in light of evidence that extended incarceration may
deleteriously affect prisoners.124 Similarly, statutes empowering courts
to incarcerate those unable to pay fines125 seem to bear no reasonable
relation to any theory of sentencing; alternatives to imposition of such
jail terms should be sought.
As a second step in its new approach to sentencing, Mississippi
review. See Comment, Appellate Review of Sentences: A Survey, supra note 10, at 252-
62.
l2,Barnes v. State, 220 Miss. 248, 251, 70 So. 2d 920, 921 (1954).
mE.g., assault with intent to rape carries a maximum penalty of life imprisonment,
while assault with intent to kill carries a maximum penalty of not more than 10 years
confinement. Miss. Code Ann. §§ 97-3-7, -71 (1972). Stealing a dog carries a maximum
penalty of not less than 1 nor more than 3 years confinement, while torturing or cruelly
beating a dog carries a maximum penalty of not more than a 1-year confinement. Miss.
Code Ann. §§ 97-17-51, 97-41-1 (1972). See also Miss. Code Ann. §§ 97-3-7,-71,-41-1
(1972).
mE.g., Miss. Code Ann. §§ 47-7-3, 99-19-19 (1972).
l2iSee ABA Project on Minimum Standards for Criminal Justice, Standards Relat-
ing to Sentencing Alternatives and Procedures § 3.1, comment d, at 141 (Approved
Draft 1968).
l25Miss. Code Ann. § 99-19-19 (1972). This section empowers the court to commit any
convict unable to pay fines, costs, and jail fees. The application of this statute would
appear unconstitutional in light of Tate v. Short, 407 U.S. 395 (1971). However, this
statute is still in effect in Mississippi. McKinney v. State, 260 So. 2d 444 (Miss. 1972);
see 44 Miss. L.J. 556 (1973).
798 MISSISSIPPI LAW JOURNAL [vol. 45
should adopt a program designed to develop criteria to guide sentencing.
Such a program might include periodic conferences of judges, perhaps
modeled after the federal sentencing institutes.126 Publication of the
proceedings of these institutes would allow nonattending judges to bene-
fit from them.
Although Mississippi is largely a rural state, sentencing councils
could be employed in at least some areas, especially where case loads
are relatively light.127 Statistics show the value of such councils12* in
developing rational sentencing criteria and enhancing judicial interac-
tion.129
Criminal judges typically assume the bench with no training in
penology.130 Offering corrections programs through State law schools
could relieve this situation. Additionally, new judges could be provided
with sentencing orientation programs concerning goals and theory of
sentencing, including alternatives to confinement.131 Finally, judges
should become familiar with State and federal penal institutions and
the facilities available therein for rehabilitation.132
In Mississippi, as is true nationally, judges are not required to make
written reports delineating the considerations used in arriving at sent-
ence.133 Such reports would be valuable as references for all courts later
faced with similar situations, and thereby clearly enhance the possibil-
ity of uniformity in sentencing. The reports also would be invaluable to
a higher court reviewing the sentence.
Also useful would be statewide compilation of statistics reflecting
the nature of offenses, characteristics of the offenders, and sentences
imposed. Again, uniformity of sentencing would be the chief advantage
if such a compilation were available to the State bench.
All of the above suggestions should work to enhance uniformity of
sentencing and to provide rational criteria to guide the exercise of judi-
cial discretion. As a reinforcing measure, Mississippi should provide for
review of sentences by the supreme court. A program modeled after the
American Bar Association Standards would be appropriate. It would be
easy to implement, since the machinery already exists, and would pro-
vide the smoothest, most economical enforcement of uniformity and
l2fiABA Project on Minimum Standards for Criminal Justice, Sentencing Alterna-
tives and Procedures § 7.2 (Approved Draft 1968).
127 Id. § 7.1.
l2*Levin, supra note 85, at 511.
mId. at 505-08.
,30Frankel, supra note 60, at 6-7.
1 "ABA Project On Minimum Standards for Criminal Justice, Sentencing Alterna-
tives and Procedures § 7.3 (Approved Draft 1968).
mId. § 7.4.
mSee Frankel, supra note 60, at 9.
1974] COMMENTS 799
review of discretion, since the appellate courts already perform these
functions in other areas of the law.
VI. Conclusion
Sentencing is perhaps the most dynamic phase in the judicial pro-
cess; it is the moment when the power of the law directly touches the
offender. When sentencing an offender, the judge should direct his sent-
ence at providing the greatest chance for rehabilitation while providing
for the protection of society, and promoting respect for the judiciary.
This important phase is presently characterized by disparity and
abuse of judicial discretion. To prevent such inequities, provision should
be made in each jurisdiction to develop a rational theory of sentencing.
Probably the most practical and equitable basis is that employed by the
National Council on Crime and Delinquincy, the American Law Insti-
tute, and the American Bar Association in drafting their model
legislation. A mixture — proportions of which would be decided by indi-
vidual states — of society-protective custodial sentencing with indeter-
minacy, based on a categorization of felonies, taking into account the
nature of the offense and the characteristics of the offender, with em-
phasis on alternatives to incarceration for the less "dangerous" catego-
ries is called for.
The doctrine of sentencing should be disseminated among the
bench; and machinery should then be provided to enhance uniformity
of application of the doctrine, and to minimize abuses of discretion.
Finally, as a check on the operation of the system at the trial level,
the state supreme court must assume duties of sentence review.
Mark Phillip Rabinowitz
RECENT DECISIONS
Constitutional Law— Search and Seizure— Full Search of Traffic Violator
Incident to Custodial Arrest is Reasonable Under the Fourth Amendment
Respondent, Willie Robinson, Jr., was convicted in the District Court for
the District of Columbia of possession of heroin1 discovered on his person in a
full search2 incident to his arrest for a traffic violation.3 During the search the
officer removed a cigarette package from respondent's coat pocket, opened it,
and found heroin.4 The defendant contended that the search of his person should
have been limited to a frisk of his outer clothing since the only purpose of the
search should have been to discover weapons.5 The government contended that
a full field search of an arrestee's person was justified by a lawful arrest and that
the officer was following prescribed police procedure.6 The Court of Appeals for
the District of Columbia reversed the conviction holding that the removal of the
cigarette package exceeded the permissible scope of a weapons search.7 On
certiorari to the Supreme Court, held, reversed. Where a lawful custodial arrest
is made for a traffic violation a full search of the arrestee's person is presumed
reasonable under the fourth amendment; the search is not limited to a search
for fruits or evidence of the crime for which the arrest was made or by the
improbability of the arrestee's being armed. United States v. Robinson, 94 S.
Ct. 467 (1973)/
The right to search the person of an arrestee incident to a lawful arrest
originated in England9 and has gone virtually unchallenged in the United
'The conviction was for possession and facilitation of concealment of heroin in viola-
tion of Narcotic Drugs Import and Export Act § 2, 35 Stat. 614 (1909) as amended 21
U.S.C. § 801 (1970); Regulatory Tax Act Ch. 736, 68 A Stat. 550 (1954) as amended 21
U.S.C. § 801 (1970).
The testimony in the Court of Appeals described a full field search as one in which
the contents of all pockets are examined along with anything else found on the arrestee's
person. The areas of search include collar, waistband, cuffs, socks and shoes. United
States v. Robinson, 94 S. Ct. 467 n.2 (1973).
'Four days prior to arrest Respondent was stopped in a routine spot check and the
officer noticed a discrepency between the age on the operator's license and on the selective
service card. The officer discovered from a subsequent investigation that Respondent was
driving with a revoked permit and stopped him again for that reason on the day of the
arrest. Id. at 478.
The arresting officer testified that he never feared for his safety and that the search
was not specifically motivated by a need to discover weapons. Id. at 467 n.7.
"The Court of Appeals first remanded the case for an evidentiary hearing. United
States v. Robinson, 447 F.2d 1215 (D.C. Cir. 1972), reu'd, 94 S. Ct. 467 (1973).
fi94S. Ct. 467 n.2 (1973).
7See Terry v. Ohio, 392 U.S. 1 (1968).
"The companion case was Gustafson v. Florida, 94 S. Ct. 488 (1973).
'■'See Dillon v. O'Brien & Davis, [1887] 16 Cox Crim. Cas. 245, cited in United States
v. Robinson, 94 S. Ct. 467 (1973). See also 2 F. Pollock & F. Maitland, The History of
English Law 578-82 (2d ed. 1898); T. Taylor, Two Studies in Constitution-
Interpretation (1969).
800
1974] RECENT DECISIONS 801
States.10 While there is authority in early English cases for the concept of a
limited search incident to arrest," the Supreme Court first defined the scope of
an incident-search in Weeks v. United States.12 In Weeks the Court held an
arrestee may be searched "to discover and seize the fruits or evidences of
crime."13 In a series of cases following Weeks, beginning with Carroll v. United
States," the Supreme Court attempted further to delineate the permissible
scope of a reasonable search incident to arrest. The Court never questioned the
right to search the arrestee's person, but instead dealt with the area under the
arrestee's control which could lawfully be searched. Although the "area of con-
trol" varied greatly from case to case,15 the Court uniformly maintained that the
purpose of a reasonable incident-search must be to discover weapons, fruits, or
implements of the crime for which the arrest was made.16 The Court's limitation
of the scope of a reasonable incident-search in Chimel v. California11 was influ-
enced by its decisions the previous year in Peters v. New York,1* Terry v. Ohio,19
U)See, e.g., Chimel v. California, 395 U.S. 752 (1969); Preston v. United States, 376
U.S. 364 (1964); Harris v. United States, 331 U.S. 145 (1947); Marron v. United States,
275 U.S. 192 (1927); Carroll v. United States, 267 U.S. 132 (1925); Weeks v. United States,
232 U.S. 383 (1914); United States ex rel. Walls v. Mancusi, 406 F.2d 505 (2d Cir. 1969),
cert, denied, 395 U.S. 958 (1969); Drayton v. United States, 205 F.2d 35 (5th Cir. 1953);
Johnson v. State, 145 So. 2d 156 (Miss. 1962); Closson v. Morrison, 47 N.H. 482 (1867);
Spalding v. Preston, 21 Vt. 9 (1848), cited in United States v. Robinson, 94 S. Ct. 467
(1973).
"See Dillon v. O'Brien & Davis, [1887] 16 Cox Crim. Cas. 245 (a seizure of certain
papers was justified as necessary to prevent their destruction as evidence); Leigh v. Cole,
[1853J 6 Cox. Crim. Cas. 329 (the court said that the right to search an individual
depends upon the circumstances of the case).
,2232 U.S. 383 (1914). The Court established the federal exclusionary rule of the fourth
amendment which provides that any evidence seized in violation of that amendment will
be excluded from court in criminal cases. The rule was later applied to the states in Mapp
v. Ohio, 367 U.S. 643 (1961). Mississippi adopted the federal exclusionary rule of Weeks
in Tucker v. State, 128 Miss. 211, 90 So. 845 (1922).
|:1232 U.S. at 392.
"267 U.S. 132 (1925) (area of search expanded to include area within arrestee's con-
trol).
l5United States v. Rabinowitz, 339 U.S. 56 (1950); Trupiano v. United States, 334
U.S. 699 (1948); Harris v. United States, 331 U.S. 145 (1947); United States v. Lefkowitz,
285 U.S. 452 (1932); Go-Bart Co. v. United States, 282 U.S. 344 (1931); Marron v. United
States, 275 U.S. 192 (1927). For good discussion of these cases see 43 Miss. L.J. 196 (1972);
69 Colo. L. Rev. 866 (1969); Annot., 10 A.L.R.3d 314 (1966).
lfiCases cited note 15 supra; Wright v. Edwards, 343 F. Supp. 792 (N.D. Miss. 1972);
Smith v. State, 128 So. 2d 857 (Miss. 1961); Cody v. State, 167 Miss. 150, 148 So. 627
(1933); Bird v. State, 154 Miss. 493, 122 So. 539 (1929); Tolliver v. State, 133 Miss. 789,
98 So. 342 (1923).
I7395 U.S. 752 (1969) (scope limited to arrestee's person and area within immediate
control or reach). See also Cupp v. Murphy, 412 U.S. 291 (1973), in which the Court said
a pre-arrest search was constitutional under the principles of Chimel v. California. Id. at
296.
1S392 U.S. 40, 66 (1968) (officer discovered possible weapon during pat down of outer
clothing).
19392 U.S. 1 (1968). The Court held that police may stop a person on the street and
802 MISSISSIPPI LAW JOURNAL [vol. 45
and Sibron v. New York.20 The incident-search of an arrestee's person was rea-
sonable in Peters because its scope was limited by the purpose of the search and
because the officer "did not engage in an unrestrained and thoroughgoing exam-
ination of Peters and his personal effects."21 In Terry the Court upheld a limited
pre-arrest frisk for weapons during an investigatory stop where it was reasonable
for the officer to believe the suspect was armed and dangerous. The Court
reasoned that the scope of the search must be limited to a pat-down of the outer
clothing since the "sole justification" for the search was the protection of the
arresting officer. The Court stated that the governmental interest in searching
a person must be balanced against the "constitutionally protected interests" of
the individual.22 The pre-arrest search in Sibron was unreasonable because the
exploration of the suspect's pocket was unrelated to the protective purpose of
the search.23 Thus in Chimel, the Court was justified by precedent in giving
limited-search protection to the arrestee's home and personal property. This
protection was based upon a requirement that probable cause exist for the
search and that the scope of the search be limited by the purpose for its initia-
tion.24 The Supreme Court, in dealing with incident-search of an arrestee's auto-
mobile, has stated that the search must be closely related to the reason for
arrest.23 In Cooper v. California26 the Court distinguished a previous case27 saying
that even probable cause to believe a car was stolen did not justify a search
because the arrest was for vagrancy, not theft. The Court further stated that
"[wjhether a search and seizure is unreasonable within the meaning of the
fourth amendment depends upon the facts and circumstances of each case
. . . ."2S In Chambers v. Maroney29 the Court used probable cause to justify a
frisk the outer clothing for weapons if they have a reasonable belief that the suspect is
armed and dangerous. The Court also said that:
The scheme of the fourth amendment becomes meaningful only when it is
assured that at some point the conduct of those charged with enforcing the laws
can be subjected to the more detached, neutral scrutiny of a judge who must
evaluate the reasonableness of a particular search or seizure in light of the
particular circumstances.
Id. at 21.
2"392 U.S. 40 (1968).
nId. at 67.
nId. at 21, 29. "[A| search which is reasonable at its inception may violate the fourth
amendment by virtue of its intolerable intensity and scope." Id. at 17-18; accord, Wolf v.
State, 260 So. 2d 425 (Miss. 1972).
2:!The Court said, "The search was not reasonably limited in scope to the accomplish-
ment of the only goal which might conceivably have justified its inception — the protection
of the arresting officer by disarming a potentially dangerous man." 392 U.S. at 65.
2,Chimel v. California, 395 U.S. 752 (1969).
25Cooper v. California, 386 U.S. 58 (1967). The Court held that a warrantless search
of arrestee's automobile one week after arrest was reasonable because the search was
closely related to the reason for arrest.
2,1/d.
27Preston v. United States, 376 U.S. 364 (1964).
2HCooper v. California, 386 U.S. 58, 59 (1967). The Court was discussing its decision
in Preston v. United States, 376 U.S. 364 (1964).
29399 U.S. 42, 47-52 (1969).
1974] RECENT DECISIONS 803
warrantless search of an arrestee's automobile even though the search took place
at the station house and was not incident to the arrest. The Court reasoned that
since there was probable cause for a search at the time of arrest, the same
probable cause existed at the station and justified the later search of the auto-
mobile for guns and stolen money.
Lower courts have had difficulty reconciling the concept of the protective-
evidentiary search incident to arrest with the incident-search of a traffic viola-
tor.10 Some courts have held that, absent special circumstances,31 a traffic arrest
does not automatically justify an incident-search of the arrestee because the
nature of the crime precludes the existence of fruits or evidence and the only
instrumentality is the car itself.32 Other courts have held that an arrestee may
be searched only if the officer reasonably believes him to be armed,33 or if there
is a rational connection between the search and the nature of the arrest.34 The
majority of courts, however, recognize the need for some type of protective
search because of the risk to police involved in a full custody arrest.35 Some
■wSee generally Agata, Searches and Seizures Incident to Traffic Violations — A Reply
to Professor Simeone, 7 St. Louis U.L.J. 1 (1962); Cook, Warrantless Searches Incident
to Arrest, 24 Ala. L. Rev. 607 (1972); Rothblatt, The Arrest: Probable Cause and Search
Without a Search Warrant, 35 Miss. L.J. 252 (1964); Simeone, Search and Seizure Inci-
dent to Traffic Violations, 6 St. Louis U.L.J. 506 (1961); 78 Yale L.J. 443 (1969); 4
Willamette L.J. 247 (1967).
"Special circumstances include new evidence discovered after a vehicle is stopped;
e.g., United States v. Drew, 451 F.2d 230 (5th Cir. 1971); Nuez v. United States, 370 F.2d
538 (5th Cir. 1967); People v. Lopez, 60 Cal. 2d 223, 384 P.2d 16, 32 Cal. Rptr. 424 (1963),
cert, denied, 375 U.S. 994 (1963) (officer saw a crowbar); State v. Krogness, 238 Ore. 135,
388 P.2d 120 (1963), cert, denied, 377 U.S. 992 (1964) (officer saw rifle); or suspicious
movement in the vehicle; e.g., McGee v. United States, 270 A. 2d 348 (D.C. Ct. App. 1970);
United States v. Thomas, 289 F. Supp. 364 (S.D.N. Y. 1968); People v. Sanson, 156 Cal.
App. 2d, 319 P. 2d 422 (1957) (defendant appeared to hide something under the seat); State
v. Boykins, 50 N.J. 73, 232 A. 2d 141 (1967) (driver indicated he would pull over but drove
off at high speed); or when driver cannot prove ownership of car; see, e.g., United States
v. Jackson, 429 F.2d 1368 (7th Cir. 1970); Welch v. United States, 361 F.2d 214 (10th Cir.
1966).
"See People v. Watkins, 19 111. 2d 11, 166 N.E.2d 433 (1960); People v. Mayo, 19 111.
2d 136, 166 N.E.2d 440 (1960); People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (1960)
(defendant arrested for running stop sign); People v. Gonzales, 356 Mich. 247, 97 N.W.2d
16 (1959) (driving with one headlight). Contra, Self v. State, 98 So. 2d 333 (Fla. 1957) (no
tail light); Arthur v. State, 227 Ind. 493, 86 N.E.2d 698 (1949) (doubtful ownership);
Edmonds v. Commonwealth, 287 S.W.2d 445 (Ky. 1956) (no license plates); Watts v.
State, 196 So. 2d 79 (Miss. 1967); Fuqua v. State, 246 Miss. 191, 145 So. 2d 152 (1962);
Smith v. State, 240 Miss. 738, 128 So. 2d 857 (1961).
:ViSee United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969); People v. Superior
Court, 7 Cal. 3d 186, 496 P.2d 1205, 101 Cal. Rptr. 837 (1972); People v. Marsh, 20 N.Y.2d
98, 228 N.E.2d 783, 281 N.Y.S.2d 789 (1967).
"Warden v. Hayden, 287 U.S. 294 (1967); Amador-Gonzalez v. United States, 391
F.2d 308 (5th Cir. 1968); People v. Watkins, 19 111. 2d 11, 166 N.E.2d 433, cert, denied,
364 U.S. 833 (1960); Lane v. Commonwealth, 386 S.W.2d 743 (Ky. 1965).
:!5State v. Curtis, 290 Minn. 429, 190 N.W.2d 631 (1971) (removal of object exceeded
scope of protective search); State v. O'Neal, 251 Ore. 163, 444 P.2d 951 (1968) (search of
804 MISSISSIPPI LAW JOURNAL [vol. 45
courts which authorize a protective search have held that an officer may not
remove an object from the arrestee's person knowing it is not a weapon,38 and
at least one court has held that where an officer feared that an innocent object
concealed a weapon he should have put it out of reach until the search was
completed rather than have examined its contents.37
In the instant case the Court determined that all custodial arrests must be
treated alike, regardless of the context in which they arise, since the danger to
the officer from "extended exposure" to the arrestee during a custodial arrest is
far greater than in a Terry-type investigatory stop.38 The Court further stated
that since a lawful custodial arrest is reasonable under the fourth amendment39
and since the right to search an arrestee's person had never been challenged,40
there is no need further to justify a search according to its degree of intensity.
The Court concluded that since the authority to search is derived from the arrest
itself and not from the existence of weapons, fruits, or evidence of the crime for
which the arrest is made, and since the scope of the search is determined by the
arresting officer's "quick ad hoc judgment," it is unnecessary to adjudicate
reasonableness in each case provided the search of the arrestee's person is inci-
dent to a lawful arrest.41
Justice Marshall,42 writing for the dissent, accused the majority of abandon-
ing the "fundamental principles"43 of the fourth amendment which require that
reasonableness be decided from the circumstances of each case and evaluated
under the "neutral scrutiny"44 of the judicial process. The dissent emphasized
that it is the role of the judiciary and not the police to determine the reasonable
scope of an incident-search since the fourth amendment requires judicial review
of such "quick ad hoc judgments" made by law enforcement authorities.45 Jus-
tice Marshall disputed the majority's statement that prior law supported the
wallet held unreasonable); Barnes v. State, 25 Wis. 2d 116, 130 N.W.2d 264 (1964) (flash-
light exploration of coat pocket unreasonable).
36United States v. Del Toro, 464 F.2d 520 (2d Cir. 1972) (removal of folded ten dollar
bill unreasonable). The court said: "True, it could have been a razor blade; something of
size and flexibility of a razor blade could be concealed virtually anywhere, and accordingly
provide the pretext for any search, however thorough." Id. at 522. Tinney v. Wilson, 408
F.2d 912 (9th Cir. 1969) (removal of soft object held unreasonable); United States v.
Gonzalez, 319 F. Supp. 563 (D. Conn. 1970). Contra, Worthy v. United States, 409 F.2d
1105 (D.C. Cir. 1968), in which Judge Sirica said the limited search in Terry "does not
apply to a valid arrest" but also said that the scope should not exceed a permissible search
for weapons. Id. at 1108-09.
"United States v. Collins, 439 F.2d 610 (D.C. Cir. 1971).
38United States v. Robinson, 94 S. Ct. 467, 476 (1973).
™Id. at 477.
40Cases cited note 10 supra.
4I94 S. Ct. at 477.
42Joined by Justices Douglas and Brennan.
"94 S. Ct. at 477.
"Id. at 478, citing Terry v. Ohio, 392 U.S. 1, 21 (1968); see Sibron v. New York, 392
U.S. 40, 59 (1968); Mapp v. Ohio, 367 U.S. 643, 647 (1961); Go-Bart Co. v. United States,
282 U.S. 344, 357 (1931); Weeks v. United States, 232 U.S. 383, 393 (1914).
,594 S. Ct. at 483.
1974] RECENT DECISIONS 805
idea of a full search of an arrestee's person since many lower court decisions have
advocated a limited search in traffic arrest cases. The dissent further contended
that the mere fact of arrest should not automatically qualify as reasonable the
ensuing search, particularly in the instant case, since there was a separate
search of the effects found upon the arrestee's person. Furthermore, Justice
Marshall stated that application of the Terry doctrine to the instant case pre-
sented a difficult problem since the lack of probable cause to support a protec-
tive search of the traffic arrestee must be balanced against the increased danger
involved in a full-custody arrest. The dissent, however, felt there was no need
to solve the balancing problem in the instant case since the examination of the
cigarette package clearly exceeded the protective purpose of the search and was
therefore unreasonable under the fourth amendment.46
The instant decision is significant for its refusal to require a rational rela-
tionship between the scope of a search of an arrestee's person and the purpose
for the search's initiation. The Court's reliance on the "unqualified authority"47
of previous cases supporting the right to search an arrestee's person is misplaced
since every case cited deals with evidentiary as well as protective searches. In
the instant case the Court recognized that the only justification for a search in
traffic arrest cases is protection of the arresting officer. In such cases the arres-
tee's offense is realistically different from the ordinary crime in which fruits or
evidence of the crime may exist. Because of this distinction, the prerequisites
for a typical search are simply not present during an arrest for a traffic violation.
In this decision the Court has failed to provide a sound reason why the scope of
the search should be identical in both situations. 48The Court stated that the
limited protective search in Terry v. Ohio*9 cannot apply to a probable cause
arrest yet the same Court has used the Terry rationale to determine the reason-
ableness of incident-searches in Chimel v. California™ and Peters v. New York.™
While the purpose of the search in Terry and in the present case is identical,
the Court held in Terry that a limited search provided adequate protection from
an individual believed to be armed and dangerous. In the instant decision,
however, the Court held that a more intensive search is necessary of one whose
only crime is driving with a revoked license. The Court distinguished Terry on
the basis of the arrestee's "extended exposure" to the officer during a custodial
arrest. This is not, however, an adequate reason for allowing a full search of the
arrestee's person, particularly when it is the only reason. The probability that
KId. at 486, 488.
"Cases cited note 15 supra; Weeks v. United States, 232 U.S. 383 (1914); Holker v.
Hennessey, 141 Mo. 527 (1897); Closson v. Morrison, 47 N.H. 484 (1867); Spalding v.
Preston, 21 Vt. 9 (1848).
4sThe government advanced an alternative argument in the instant case that a full
field search was justified since the arrestee would be subjected to an inventory search
anyway upon his arrival at the station house. However, every arrest does not result in an
inventory search since it is possible to post bail in many cases. United States v. Mills,
472 F.2d 1231 (D.D.C. 1972). See generally 53 Boston U.L. Rev. 858 (1973).
49392 U.S. 1 (1968).
5n395 U.S. 752, 762 (1969).
■'392 U.S. 40, 67 (1968).
806 MISSISSIPPI LAW JOURNAL [vol. 45
a handcuffed traffic violator on his way to the station house will extricate from
his person a straight pin or razor blade and attack the officer is too small to
justify the serious intrusion upon fourth amendment rights resulting from a full
search. A frisk of the outer clothing will provide sufficient protection for the
arresting officer in all but the most unusual of cases. Thus the instant decision
is irreconcilable with the fourth amendment guarantee of reasonableness be-
cause of the disparity between the purpose and the scope of the search. The
holding in the present case is also contrary to the strict justification-limited
scope rationale advocated in Chimel v. California.52 The Court indicated in the
instant case that the search of an arrestee's person has no practical limits pro-
vided it is not "patently abusive"53 and that it needs no justification other than
the fact of arrest. Consequently, the fourth amendment protections now enjoyed
by the individual are drastically less than those given to his home and personal
effects by the holding in Chimel.
The potential for abuse of the powers given to police by the instant decision
is immediately obvious and certainly far-reaching since most individuals have
their first serious encounter with the police in the context of a traffic violation.
The greatest amount of discretion in our law enforcement system is given to the
police officer on the street who most often makes the initial decision to arrest.
The present case undeniably increases the rewards of discretionary enforcement
at the expense of individual fourth amendment protections. The ability to use
the traffic arrest as a pretext to search for evidence of unrelated crimes is
perhaps the most dangerous power bestowed upon police by this decision. There
is no rational relation between arrest for driving without a license and possession
of contraband. As a result of this decision, however, the arresting officer needs
no probable cause to search for evidence on the arrestee's person. It is therefore
not inconceivable that policemen may enforce traffic laws more strictly against
certain individuals premised upon a mere suspicion that they possess drugs or
other contraband. Also, state legislatures might further enlarge this discretion-
ary power through legislation designed to lessen the requirements of an arresta-
ble offense or to increase the number of offenses which carry the alternative of
arrest. Because of these possibilities for abuse it is essential that the Court
concede the unique predicament of the traffic violator and abandon its ipso facto
approach to the incident-search issue. The Court's refusal to acknowledge vary-
ing degrees of reasonableness in the search of an arrestee's person ignores the
fundamental principle of the fourth amendment — "the right of the people to be
secure in their persons" as well as to have their "houses, papers, and effects"
protected against unreasonable searches and seizures. If the Court insists on
adherence to the instant decision some adjustments will inevitably be de-
manded by the public to align the scope of the search more fairly with the nature
of the offense.
It is difficult to find a reasonable solution for the incident-search problem
32395U.S. 752 (1969).
-'United States v. Robinson, 94 S. Ct. 467, 477 (1973). The Court cited Rochin v.
California, 342 U.S. 165 (1952), in which the defendant was forced to have his stomach
pumped.
1974] RECENT DECISIONS 807
but it would seem unreasonable not to allow a protective search in traffic arrest
cases. The major difficulty lies in the degree to which evidence of unrelated
crimes, discovered during the protective search, will be admissible in the courts.
A prohibition against admission of all evidence other than weapons is directly
contra to the position taken in the instant case and appears unreasonable in
light of the plain sight doctrine. The line must be drawn somewhere between
evidence or contraband in plain view on an arrestee's person and evidence which
may be discovered only after an intensive search, as in the instant case. Regard-
less of the scope, it is certainly for the judiciary and not the police to determine
in each case whether the proper limit was observed. The Court, by allowing a
full search, ignores the maxim that reasonableness requires a balance in every
case between the governmental interest at stake and the infringement of pro-
tected rights.
David T. Lail
Federal Courts— Three-Judge Courts— Applicability of Section 2281
Expanded to Declaratory Judgments Which Are Injunctive in Nature
Appellee, a prison inmate charged in a penitentiary disciplinary report,
filed a petition1 in federal district court against the Director of the Florida
Division of Corrections requesting a declaratory judgment that the procedural
safeguards promulgated pursuant to state regulations2 governing prison discipli-
nary proceedings are unconstitutional. Appellee contended that he was adminis-
tratively segregated3 without a hearing and was denied rights secured by the 5th,
6th, and 14th amendments in a subsequent disciplinary hearing which deter-
mined that he should be punitively segregated.4 Appellant testified that the
corrective proceedings were conducted in accordance with disciplinary rules5
adopted pursuant to state regulations. The District Court of the Middle District
of Florida entered a declaratory decree stating the rights of the appellee to
constitutional due process6 and enjoined the appellant from enforcing a loss of
'The plaintiff originally filed a petition which he characterized as a "writ of habeas
corpus for relief and full compensation." The court sua sponte and in accordance with
pretrial stipulation treated the petition as a civil complaint pursuant to 42 U.S. C. § 1983
(1970), seeking declaratory relief pursuant to 28 U.S.C. § 2201 (1970). Sands v. Wain-
wright, 357 F. Supp. 1062, 1068 (M.D. Fla. 1973). State prison practices usually are
attacked by either a habeas corpus petition or a civil complaint pursuant to 42 U.S.C.
§ 1983 (1970). See generally Turner, Establishing the Rule of Law in Prisons: A Manual
for Prisoner's Rights Litigation, 23 Stan. L. Rev. 473, 504-11 (1971). See also Preiser v.
Rodriguez, 411 U.S. 475 (1973). There has been a vast increase of prison litigation in the
federal courts, with most of the suits being brought under section 1983. See Recent Devel-
opments, State Inmate's Challenge to Conditions of Prison Confinement Is Cognizable
Under 42 U.S.C. § 1983 and Entails No Requirement of Exhaustion of State Remedies,
72 Colum. L. Rev. 1078, 1079 (1972).
Tla. Stat. § 945.21 (1971), provides in part:
Regulations of the Division
(1) The Division is authorized to adopt and promulgate regulations governing
the administration of the correctional system and the operation of the Division.
In addition to specific subjects otherwise provided for herein, regulations of the
Division may relate to:
(a) Conduct to be observed by prisoners;
(b) Punishment of prisoners.
3This generally means confinement to one cell with a loss of inmate privileges which
he would have enjoyed had he been assigned to the general inmate population. Sands v.
Wainwright, 357 F. Supp. 1062, 1077 (M.D. Fla. 1973).
4This generally means confinement to one cell accompanied by (1) food rationing, (2)
loss of gain time, extra gain time, special gain time, or gain time in advance, (3) loss of
visiting privileges, or (4) loss of a substantial privilege which is allowed as a normal matter
to an inmate confined in administrative segregation. Id. at 1078.
52 Fla. Admin. Code ch. 10 B-3.06 (1971).
"The district court held, inter alia: (1) that punitive and administrative segregation
and the loss of any type gain time constitute "grievous losses"; (2) that prior to imposition
of these losses prison authorities must conduct a hearing "appropriate to the nature of
the loss" (the court included ten procedural safeguards when the loss is confinement in
disciplinary segregation or loss of gain time and three less restrictive requirements when
the loss is administrative segregation); and (3) that under its present rules and regula-
1974] RECENT DECISIONS 809
time penalty against the appellee. On appeal to the Fifth Circuit Court of
Appeals, held, vacated and remanded. Where the district court granted a decla-
ratory judgment and further enjoined a state officer from enforcing rules pro-
mulgated pursuant to statewide regulations on the grounds of unconstitu-
tionality of such regulations as applied, the nature of the judgment is injunctive
within the meaning of section 2281 and a three-judge district court must be
convened in accordance with 28 U.S.C. § 2284. 491 F.2d 417 (5th Cir. 1973) (en
banc).
Three-judge district courts were first authorized in 1903. 7 Although this was
an era of "devout federalism,"8 federal equity power was essentially unre-
stricted.9 Thus the extent to which state regulations could be enjoined by federal
courts became a major constitutional issue.10 When the Supreme Court, in Ex
Parte Young," permitted federal courts to enjoin the enforcement of state stat-
utes and regulations on the basis of their unconstitutionality, a major tug of war
between state and federal powers ensued.12 In response to Ex Parte Young, a
three-judge court statute was adopted by Congress.13 There are several accounts
of the history of the three-judge court and the interests that it was designed to
protect.14 The original statute has been substantially expanded since 1910, 15 and
tions, Florida did not meet the constitutionally required procedures. Sands v. Wainwright,
357 F. Supp. 1062, 1068-96 (M.D. Fla. 1973).
7Act of Feb. 11, 1903, ch. 544, § 1, 32 Stat. 823. The three-judge courts were first used
to deal with anti-trust suits.
*See Lockwood, Maw & Rosenberry, The Use of the Federal Injunction in Constitu-
tional Litigation, 43 Harv. L. Rev. 426, 428 (1930).
"Hutcheson, A Case For Three Judges, 47 Harv. L. Rev. 795, 807-10 (1934).
'"Comment, Why Three-Judge District Courts?, 25 Ala. L. Rev. 371, 372 (1973).
"209 U.S. 123 (1908).
i2See generally 42 Cong. Rec 4847-59 (1908).
,3Act of June 18, 1910, ch. 309, § 17, 36 Stat. 557, as amended 28 U.S.C. § 2281
(1970). The 1910 Act required that all actions seeking interlocutory injunctions restraining
the enforcement of allegedly unconstitutional statutes must be heard and determined by
a three-judge court.
uSee generally C. Wright, Law of Federal Courts § 50 (2d ed. 1970); Ammerman,
Three Judge Courts: See How They Run\, 52 F.R.D. 293 (1971); Currie, Three-Judge
District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964); Hutcheson, supra
note 9, at 795; Comment, The Three-Judge District Court and Appellate Review, 49 Va.
L. Rev. 538, 539 (1963); Note, Three-Judge Court Practice Under Section 2281, 53 Geo.
L.J. 431 (1965); Note, The Three-Judge District Court: Scope and Procedure Under 2281,
11 Harv. L. Rev. 299 (1963) [hereinafter cited as Scope and Procedure]. The following
reasons for enactment of Section 2281 are generally accepted: (1) to prevent damage to
state pride resulting from federal injunctions against state statutes by single judges; (2)
to improve the deliberation of the suit; and (3) to maintain state superiority in the field
of economic regulation and to protect regulatory programs already enacted. Comment,
supra note 10, at 374-75.
"Compare Act of June 18, 1910, ch. 309, § 17, 36 Stat. 557 with Act of Mar. 4, 1913,
ch. 160, § 266, 37 Stat. 1013 (original Act amended to include administrative orders) and
Act of Feb. 13, 1925, ch. 229, § 238, 43 Stat. 936 (amended Act to require three judges in
suits for permanent injunctions) and Act of June 25, 1948, ch. 646, §§ 2281-84, 62 Stat.
936 (amended Act to require three judges to issue permanent injunctions whether or not
810 MISSISSIPPI LAW JOURNAL [vol. 45
the Act now requires that when: (1) an interlocutory or permanent injunction
is sought (2) to restrict a state officer (3) from enforcing a state statute or order
made by an administrative board or commission acting pursuant to state stat-
ute (4) on constitutional grounds, a three-judge court must be impaneled.18 The
Supreme Court has adopted a policy of strict construction in applying the stat-
ute.17 While section 2281 is clear in theory, the task of defining the kinds of cases
that fall within the statute has proven complex.18 Since the statute's first inter-
pretation in Ex Parte Metropolitan Water Co.,19 the Court has defined essen-
tially every key word and phrase of section 2281.
In order to come within the scope of section 2281, the complaint must seek
injunctive relief.20 A complaint seeking injunctive and declaratory relief also
falls within the statute.21 There has been considerable controversy over whether
petitioner seeks an interlocutory injunction) and 28 U.S.C. § 2281 (1970).
"The present statute reads:
An interlocutory or permanent injunction restraining the enforcement, opera-
tion or execution of any State statute by restraining the action of any officer of
such State in the enforcement or execution of such statute or of an order made
by an administrative board or commission acting under State statutes, shall not
be granted by any district court or judge thereof upon the ground of unconstitu-
tionality of such statute unless the application thereof is heard and determined
by a district court of three judges under Section 2284 of this title.
28 U.S.C. § 2281 (1970).
"Phillips v. United States, 312 U.S. 246, 250-51 (1941). See also Board of Regents v.
New Left Educ. Project, 404 U.S. 541, 545 (1972); Allen v. State Bd. of Elections, 393 U.S.
544, 561 (1969). The reasons generally given for the adoption of this policy are: (1) burdens
imposed upon the lower courts, Phillips v. United States, supra at 251; and (2) burdens
imposed upon the Court due to the mandatory direct review of three-judge rulings. Florida
Lime & Avocado Growers Inc. v. Jacobsen, 362 U.S. 73, 92-93 (1960) (dissenting opinion).
"*Currie, supra note 14, at 12-13. Section 2281 is "long-winded, repetitive, and sloppy
in draftsmanship. . . . Such a prolix statute could hardly have escaped serious problems
of interpretation. "/d. ; see Comment, The Three-Judge Court Act of 1910: Purpose, Proce-
dure and Alternatives, 62 J. Crim. L.C. & P.S. 205 (1971).
I9220U.S. 539 (1911).
2ftFlemming v. Nestor, 363 U.S. 603 (1960). There are various federal statutes dealing
with the use of federal injunctive power. D. Dobbs, Remedies § 2.12, at 133 (1973). See,
e.g., 28 U.S.C. § 2281 (1970); 28 U.S.C. § 2283 (1970) provides:
A court of the United States may not grant an injunction to stay proceedings in
a State court except as expressly authorized by Act of Congress, or where neces-
sary in aid of its jurisdiction, or to protect or effectuate its judgments.
2]See, e.g., Story v. Roberts, 352 F. Supp. 473 (M.D. Fla. 1972). The Federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (1970) provides:
§ 2201 Creation of Remedy
In a case of actual controversy within its jurisdiction, except with respect
to Federal taxes, any court of the United States, upon the filing of an appropri-
ate pleading, may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect of a final judgment
or decree and shall be reviewable as such.
§ 2202 Further Relief
1974] RECENT DECISIONS 811
a suit solely for a declaratory judgment might fall within the meaning of "in-
junctive relief and thus within the scope of section 2281. 22 Thus far the Su-
preme Court has refused to apply section 2281 to suits merely seeking declara-
tory judgments.23 Various commentators, however, have asserted that declara-
tory judgments should fall within the scope of section 2281 since they may serve
as the basis for a subsequent injunction against the enforcement of a state or
federal statute.24 As to the application of section 2281 "injunctive relief to
Further necessary or proper relief based on a declaratory judgment or decree
may be granted, after reasonable notice and hearing, against any adverse party
whose rights have been determined by such judgment.
The following reasons for the enactment of the Declaratory Judgment Act are generally
accepted: (1) to provide anticipatory relief; (2) to provide an alternative to and prevent
abuse of injunctions; and (3) to reduce the economic burden in the determination of
federal rights. See Note, The Res Judicata Effect of Declaratory Relief in the Federal
Courts, 46 S. Cal. L. Rev. 803, 805-09 (1973).
"Proponents for a broadening of the statute in this area seem to feel that "while
'injunction' is a term of art, it should be construed to effectuate the statutory purpose;
'injunction' can reasonably be interpreted to include all decrees or judgments whose effect
is substantially the same, with no respect to the purposes of the three-judge statutes, as
that of traditional injunction." Currie, supra note 14, at 15. Sentiment for an expansive
interpretation of "injunctive relief seems to run high. See, e.g., id. at 13-20; Comment,
Applicability of the Three-Judge Court in Contemporary Law: A Viable Legal Procedure
or a Legal Horsecart in the Jet Age?, 21 Am. U.L. Rev. 417, 426 (1971) [hereinafter cited
as Applicability of the Three-Judge Court]; Comment, The Three-Judge Federal Court
in Challenges to State Action, 34 Tenn. L. Rev. 235, 239-40 (1967); Comment, The Three-
Judge Court in Contemporary Jurisdiction, 41 Wash. L. Rev. 877, 892-94 (1966).
"Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (a landmark decision holding
that a suit for declaratory relief was not within 28 U.S.C. § 2282 [the analogous federal
statute to section 2281] because the original request for an injunction had been aban-
doned before trial); Flemming v. Nestor, 363 U.S. 603 (1960); see Mitchell v. Donovan,
398 U.S. 427 (1970) (where the Supreme Court held that when only declaratory relief was
sought, it had no jurisdiction to consider an appeal under section 1253, which provides
for direct appeal to the Supreme Court from a three-judge court). See also Nieves v.
Oswald, 477 F.2d 1109 (2d Cir. 1973), in which prison inmates of Attica Correctional
Facility petitioned for injunctive relief against the holding of prison disciplinary hearings
and punishment without constitutional procedural safeguards. The court held the case
came within section 2281. The court, however, indicated that had the inmates sought only
declaratory relief, there would have been no necessity for remand for trial by a three-judge
court since the case would not have been within the scope of section 2281; Whatley v.
Clark, 482 F.2d 1230 (5th Cir. 1973); Triple A Realty, Inc. v. Florida Real Estate Comm'n,
468 F.2d 245 (5th Cir. 1972); E. Borchard, Declaratory Judgments 366-67 (2d ed. 1941).
But see Mitchell v. Donovan, 398 U.S. 427 (1970) (dissenting opinion) (where Justice
Douglas asserts that the Kennedy case did not address the question whether three-judge
courts are necessary when a declaratory judgment is sought); Jeannette Rankin Brigade
v. Chief of Capitol Police, 421 F.2d 1090 (D.C. Cir. 1969), rev'd and remanded, 342 F.
Supp. 575 (1972) (three-judge court), aff'd, 409 U.S. 972 (1973).
uSee Cleary, Developments in the Law — Declaratory Judgments, 62 Harv. L. Rev.
787, 869-70 n.654 (1949) (pointing out that this problem seldom arises since a request for
a declaratory judgment is usually accompanied by a prayer for injunctive relief); Com-
ment, The Three-Judge Federal Court in Challenge to State Action, supra note 22, at 240.
812 MISSISSIPPI LAW JOURNAL [vol.45
injunctive orders issued subsequent to the declaratory judgment, there has been
only limited Supreme Court litigation.25 In interpretative contexts other than
section 2281, the Court has pointed out that a declaratory judgment might have
the same effect as an injunction.26 In order to come within the scope of section
See also 28 U.S.C. §§ 2202, 2283 (1970). There are several cases asserting the possibility
of the issuance of an injunction subsequent to a declaratory judgment. See, e.g., Powell
v. McCormack, 395 U.S. 486, 499 (1969), where the Court stated: "A court may grant
declaratory relief even though it chooses not to issue an injunction or mandamus, (cita-
tions omitted) A declaratory judgment can then be used as a predicate to further relief,
including an injunction." But see text accompanying note 25 infra (declaratory judgments
are not allowed to lie where injunctions cannot be issued). See also Vermont Structural
Slate Co. v. Tatko Bros. Slate Co., 253 F.2d 29 (2d Cir. 1958); 2 W. Anderson, Actions
for Declaratory Judgments § 451 (2d ed. 1951); E. Borchard, supra note 23, at 438-42.
It is generally accepted that the main characteristic of a declaratory judgment is that it
declares the rights of the litigants without appendage of a coercive decree, and injunctive
relief should thus be granted with reluctance. See id. § 458, at 1074; Note, supra note 21,
at 847-48. See 2 W. Anderson, supra at § 451, and E. Boachard, supra note 23, at 441,
for an analysis of the procedure for receiving a subsequent injunction.
2"See Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C. Cir.
1969), rev'd and remanded, 342 F. Supp. 575 (1972) (three-judge court), aff'd, 409 U.S.
972 (1973). The court of appeals held that where a trial court's declaratory ruling of the
unconstitutionality of a statute prohibiting assemblages on the United States Capital
grounds might deem an injunctive order appropriate to accompany its declaration and
thus have a "restraining effect comparable to injunctive relief," a three-judge district
court would not lose its jurisdiction over the case because the plaintiffs withdrew their
previous request for injunctive relief. 421 F.2d at 1094. On remand, the three-judge district
court complied with the plaintiffs' renewed demands for a permanent injunction. Upon
direct appeal to the Supreme Court, the decision of the three-judge court was summarily
affirmed. There is considerable controversy whether there is any precedential value in a
Supreme Court summary affirmance without opinion in a case within the Court's obliga-
tory appellate jurisdiction. Compare Doe v. Hodgson, 478 F.2d 537 (2d Cir. 1973) with
Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir. 1972).
2BSamuels v. Mackell, 401 U.S. 66 (1971) (This was a case in which a pending state
criminal prosecution was under consideration. In deciding that the considerations for
denial of injunctive relief were equally appropriate for declaratory relief, the court held
that in order for a declaratory judgment permissibly to interfere with state proceedings it
must meet the same standards applicable to injunctions. A primary consideration of the
court was that "after a declaratory judgment is issued the district court may enforce it
by granting '[f]urther necessary or proper relief,' 28 U.S.C. § 2202, and therefore a
declaratory judgment issued while state proceedings are pending might serve as the basis
for a subsequent injunction against those proceedings to 'protect or effectuate' the declara-
tory judgment, 28 U.S.C. § 2283, and thus result in a clearly improper interference with
the state proceedings." Id. at 72); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S.
293 (1943) (where considerations which led federal courts of equity to refuse to enjoin the
collection of state taxes, save in exceptional cases, required a like restraint in the use of
declaratory judgments); Babitz v. McCann, 320 F. Supp. 219 (E.D. Wis. 1970), vacated,
402 U.S. 903 (1971). But see Steffel v. Thompson, 94 S.Ct. 1209 (1974) (The court stated
that the same considerations of equity, comity, and federalism which formed the basis of
Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). do
not come into play when there is no state criminal prosecution pending. In stressing that
1974] RECENT DECISIONS 813
2281, the complaint must challenge the constitutionality of a state statute or
an administrative order.27 The courts have given "state statute" a rather broad
definition. In Phillips v. United States,2* the Court held that a three-judge court
is required when "a suit . . . seeks to interpose the Constitution against enforce-
ment of a state policy, whether such policy is defined in a state constitution or
in an ordinary statute or through the delegated legislation of an 'administrative
board or commission.' "29 In American Federation of Labor v. Watson,30 the
Court added that the term includes "all enactments, however adopted, to which
a state gives the force of law."31 Thus, in Gilmore v. Lynch,32 the Ninth Circuit
held that a suit by prison inmates seeking to enjoin enforcement of rules adopted
by the California Director of Corrections came within the scope of section 2281.
Although the courts have broadly interpreted the classes of enactments which
fall within the meaning of "state statute," the actual application of this term
has been narrowly construed.33 In Spielman Motor Sales Co. v. Dodge,3* the
Court held that in order to come within the scope of section 2281 the statute
attacked must be of "general application" and of "statewide interest and con-
cern."35 Some confusion exists in this area since there is no definite standard
for determining when a case presents a matter of statewide interest and con-
cern.36 There are, however, several cases which demonstrate the Court's demand
a declaratory judgment is a "milder alternative" than the injunction, the court held that
in granting declaratory relief when there is no pending prosecution, the trial court should
not apply the injunctive standard of irreparable injury.) It must be pointed out that the
Court did not rule upon the propriety of the issuance of a subsequent injunction based
upon the declaratory judgment, 28 U.S.C. § 2202 (1970) and 28 U.S.C. § 2283 (1970).
Compare Steffel v. Thompson, 94 S.Ct. 1209 (1974) (White, J., concurring), with id.
(Rehnquist, J., concurring). See also Note, supra note 21, at 845-49. The Supreme Court
has evidenced a willingness to determine that suppression orders are "injunctive orders"
within the scope and application of 28 U.S.C. § 1253 (1970) "injunctive relief." (Section
1253 deals with direct appeal to the Supreme Court from three-judge courts.) See Perez
v. Ledesma, 401 U.S. 82, 84 (1971).
2728 U.S.C. § 2281 (1970).
2*312 U.S. 246 (1941).
2Hd. at 251.
30327 U.S. 582 (1946).
"Id. at 592.
32400 F.2d 228 (9th Cir. 1968), cert, denied, 393 U.S. 1092 (1969), aff'd on remand,
319 F. Supp. 105 (N.D. Cal. 1970). See also Nieves v. Oswald, 477 F.2d 1109, 1114 (2d
Cir. 1973) (where the court held that a constitutional attack on prison regulations "suffi-
ciently implicates well-considered state policy of state-wide application" to fall within the
statute).
™See Ex Parte Collins, 277 U.S. 565, 567 (1928).
34295U.S. 89(1935).
Hd. at 94; accord, Rorick v. Board of Comm'rs, 307 U.S. 208 (1939).
36Some of the factors considered are: (1) whether the statute applies only to a limited
geographic area; (2) whether a decision against the state will have far-reaching effects;
and (3) whether the attacked actions, though affecting only one area of the state, reflect
state policy. Note, Three Judge Courts, Some Problems and a Proposal, 54 Cornell L.
Rev. 928, 934-35.
814 MISSISSIPPI LAW JOURNAL [vol. 45
for statewide applicability of a state statute or regulation.37 Board of Regents v.
New Left Education Project™ is a recent example of the Court's interpretation.
In order to come within the scope of section 2281, the complaint must seek to
enjoin the action of a "state officer" or an order made by an "administrative
board or commission." The Court's interpretation of "state officer" has limited
the term's application to those officials who are enforcing a statute having
statewide effect.39 A single individual has been held sufficient to constitute an
"administrative board or commission" within the meaning of section 2281. In
Gilmore v. Lynch,40 the Ninth Circuit held that a regulation promulgated by one
man which is "statewide in its application . . . is as effective and authoritative
in its establishment of state policy as if it had been announced by a board of
more than one member."41 A suit for injunctive relief against a state statute or
regulation must be brought upon the ground of unconstitutionality, and the
claim must rely on the federal constitution.42 In Ex Parte Poresky,4Z however,
the Supreme Court held that when the complaint fails to present a substantial
federal question, a single judge may dismiss for lack of federal jurisdiction. The
Court stated that a question is insubstantial if it is " 'obviously without merit'
or because 'its unsoundness . . . clearly results from the previous decisions
. . . .' "44 The Court extended the Poresky rationale in Bailey v. Patterson45 by
holding that a single-judge court could issue an injunction against a state stat-
ute when "prior decisions make frivolous any claim that a state statute on its
face is not unconstitutional."46 A suit to enjoin a state statute or regulation
which is constitutional on its face still requires the convening of a three-judge
court if the statute or regulation is unconstitutional as applied to the complain-
ant.47 Section 2281 is interpreted as a jurisdictional statute, and a single judge
37See, e.g., Moody v. Flowers, 387 U.S. 97, 101 (1967); Sailors v. Board of Educ, 387
U.S. 105 (1967); Griffin v. County School Bd., 377 U.S. 218 (1964).
38404 U.S. 541 (1972). The Court held that a three-judge court is not required when
the "statute or regulation is of only local import . . . ." Id. at 542-43.
39See, e.g., City of Cleveland v. United States, 323 U.S. 329 (1945) (holding that a
local official collecting taxes was a "state officer" within the meaning of the statute since
the tax statute was of statewide concern); Ex parte Public Nat'l Bank, 278 U.S. 101 (1928)
(holding that a city official collecting taxes pursuant to a state statute was not a "state
officer" since the taxes were applied for strictly local purposes).
4n400 F.2d 228 (9th Cir. 1968), cert, denied, 393 U.S. 1092 (1969).
"Id. at 230.
"Florida Lime & Avocado Growers Inc. v. Jacobsen, 362 U.S. 73 (1960).
43290 U.S. 30(1933).
uId. at 32.
45369U.S. 31 (1962).
4R/d. at 33 (citations omitted); accord, Rosado v. Wyman, 397 U.S. 397 (1970); Turner
v. City of Memphis, 369 U.S. 350 (1962). But see Currie, supra note 14, at 65; Comment.
supra note 18 at 208-09; Note, supra note 36, at 931-33.
47Turner v. Fouche, 396 U.S. 346 (1970); Department of Employment v. United
States, 385 U.S. 355 (1966); Query v. United States, 316 U.S. 486 (1942); Ex Parte
Bransford, 310 U.S. 354 (1940). See also Nieves v. Oswald, 477 F.2d 1109, 1113 (2d Cir.
1973).
1974] RECENT DECISIONS 815
has no power to try a case which falls within the statute.48 A jurisdictional defect
cannot be waived by the parties to a lawsuit.49 Once an appellate court finds a
case falls within section 2281, it must, on its own motion, remand the case for
trial by a three-judge court.50
In the instant case, the court found that since the plaintiff had petitioned
the court on federal constitutional grounds to enjoin the Director of Corrections
from enforcing the state regulations as applied, and since the district court
granted a declaratory judgment setting forth the minimum procedures required
by the Constitution and subsequently ordered that these procedures be imple-
mented, the impact of the judgment was injunctive and thus was a type of relief
within the scope of section 2281. As to the question of regulations promulgated
by one man rather than by an "administrative board or commission," the court
ruled that since the regulations are statewide in their application, their effec-
tiveness and authoritativeness in establishing state policy is equal to that of a
board of more than one member.51 The court concluded that since the case
passed all tests which determine the jurisdiction of a three-judge court and since
section 2281 is a jurisdictional statute52 and jurisdictional defects cannot be
waived,53 the case must be vacated and remanded for proceedings pursuant to
section 2284 which lead to the convening of a three-judge court.54
The instant decision is representative of the federal judiciary's growing
impatience with section 2281. Many of the standards applied by the courts to
determine the scope of section 2281 have caused confusion. Important issues
concerning interpretation of section 2281 are raised in defining such statutory
terms as "state statute," "administrative board or commission," "administra-
tive order," "unconstitutionality," and "injunction." The instant decision ex-
tends section 2281 to its furthest limits. In examining the district court's order
and determining that the nature of the judgment was injunctive rather than
declaratory, the court goes to the underlying policy of the statute.55 The Su-
4SKennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Borden Co. v. Liddy, 309 F.2d
871 (8th Cir. 1962).
"See Mitchell v. Maurer, 293 U.S. 237 (1934).
'"'Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Borden Co. v. Liddy, 309 F.2d
871 (8th Cir. 1962). For a discussion of the strengths and weaknesses of section 2281 and
some proposals, see Jackson v. Choate, 404 F.2d 910 (5th Cir. 1969) (Fifth Circuit is very
liberal in applying § 2281);Currie, supra note 14, at 78-79; Applicability of the Three-
Judge Court, supra note 22, at 438-39; Scope and Procedure, supra note 14, at 316-19;
Comment, supra note 10, at 384-88; Comment, supra note 36, at 316-17.
5lGilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968).
"Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
53See Mitchell v. Maurer, 293 U.S. 237 (1934).
34Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973) (en banc) (Brown, C.J. &
Coleman, J. concurring). Chief Judge Brown expressed great displeasure with the present
statute and states that maybe this decision will "stimulate the House into joining the
Senate in § 663 and § 271 (which repealed 28 U.S.C.A. 2281, 2282) by which the require-
ments of a three-judge court are substantially eliminated." Id. at 431.
"See, e.g., Phillips v. United States, 312 U.S. 246, 251 (1941) (where the court stated
that the purpose of the statute is to protect state legislative intent from the "improvident"
statewide doom of the federal court). For the reasons why the statute was enacted see note
14 supra.
816 MISSISSIPPI LAW JOURNAL [vol. 45
preme Court and circuit court decisions adhere to an interpretative policy of
judicial efficiency in not requiring a three-judge court when only declaratory
relief is sought.56 Since it is generally accepted that a declaratory judgment
presents a milder form of relief emphasizing a declaration of the party's rights
rather than coercive relief,57 it would seem illogical to apply section 2281 to all
declaratory judgments. The circuit court's interpretation of "injunctive relief,"
however, is a logical and necessary extension of section 2281 as it applies to the
statute only when the "true impact of the court's judgment [is] injunctive
In finding that the regulation in question was within the definition and
application of "state statute" and that the single Divisional Director constituted
an "administrative board," the court cited with approval Gilmore v. Lynch,59 a
case which affords a liberal interpretation of these terms. In this determination
the court may have contradicted Board of Regents u. New Left Education
Project,™ since the regulation did not apply to the city and county jails of the
state. fil Attempts to define clearly the types of enactments which have "state-
wide application or effectuate a statewide policy"82 have failed.63 The court of
appeals found that since the statute is jurisdictional,64 there can be no waiver
"See, e.g., Mitchell v. Donovan, 398 U.S. 427 (1970); Whatley v. Clark, 482 F.2d 1230
(1972). See also Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090, 1103-
05 (D.C. Cir. 1969) (dissenting opinion), rev'd and remanded, 342 F. Supp. 575 (1972)
(three-judge court), aff'd, 409 U.S. 972 (1973).
"See, e.g., 2 W. Anderson, supra note 24, § 458, at 1074; Note, supra note 21, at 847-
48. See also Steffel v. Thompson, 94 S.Ct. 1209 (1974); Perez v. Ledesma, 401 U.S. 82
(1971) (separate opinion).
"Sands v. Wainwright, 491 F.2d 417, 426 (5th Cir. 1973) (en banc); see notes 24 & 25
and accompanying text supra; cf. note 26 and accompanying text supra. The court of
appeals points out that the district court could not have satisfied the petitioner's request
without an injunction. The court should have expounded on the effect of its ruling; in-
stead the following effects are assumed. When it appears to the district judge that in
granting a declaratory judgment further injunctive relief will be necessary and proper
he should request the convening of a three-judge court. Should a situation arise subse-
quent to the declaratory judgment where further injunctive relief is necessary and proper,
the district judge should request the convening of a three-judge court. Failure to do so will
result in remand to a three-judge court upon appeal. See also Triple A Realty, Inc. v.
Florida Real Estate Comm'n, 468 F.2d 245, 247 (5th Cir. 1972) (It may be possible to
distinguish this case from Sands on the basis that the parties did not seek an injunction.
and thus the issuance of the injunction was not "necessary and proper." The court,
however, does not address the issue of whether the injunctive relief was considered part
of the declaratory judgment or an ordinary injunction). For an analysis of the procedures
for supplementary relief, see 2 W. Anderson, supra note 24, at § 451, and E. Borchard.
supra note 23, at 441.
M400 F.2d 228 (9th Cir. 1968), cert, denied, 393 U.S. 1092 (1969).
fl,,404 U.S. 541 (1972).
filFor the instant court's philosophy on this issue, see Guarjardo v. Estelle, 491 F.2d
417, 429 (5th Cir. 1973) (en banc).
*2Board of Regents v. New Left Educ. Project, 404 U.S. 541, 542-43 (1972).
nSee note 36 supra.
"Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Borden Co. v. Liddy, 309 F.2d
1974] RECENT DECISIONS 817
of the requirement for a three-judge court.65 In pointing out that neither of the
parties objected to the single judge, however, the court impliedly favored waiver
of jurisdiction. This aspect of the decision, however, revealed that there are
instances in which a three-judge court is unnecessary and that waiver should
be permitted. In an age when the machinery of state, local, and administrative
government is so complex, it is unrealistic to allow one broad, sweeping section
to encompass, distinguish, and define every facet of state governmental
operations. As of yet Congress has failed to enact legislation redefining the
purposes and scope of the three-judge statute.66 Severe restriction or abolish-
ment of section 2281 by Congress, however, could produce the same problems
which led to its enactment.67 There are also crucial situations in which the states
should have the benefit of direct appeal to the Supreme Court, for which this
statute provides. B*
Should the Supreme Court strictly adhere to the policies of previous deci-
sions, the instant case will probably be reversed.69 The Steffel and Sands cases,
however, exemplify confusion surrounding the effect of application of declara-
tory relief and question the nature and coerciveness of declaratory judgments.
Thus the Supreme Court may soon be forced to expound on the effect and
coerciveness of declaratory judgments when their enforcement comes into con-
flict with other judicial rulings70 and statutes.71 Should Sands survive the appel-
late process and absent a Congressional redefinition and clarification of the
statute's scope, the judicial system will be literally swamped with cases requir-
ing the convening of a three-judge court. The increasing number of cases seeking
871 (8th Cir. 1962).
"See Mitchell v. Maurer, 293 U.S. 237 (1934).
"See Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973) (en banc) (Brown concurring).
"See, e.g., Scope and Procedure, supra note 14, at 303.
MSee, e.g, Forston v. Morris, 385 U.S. 231 (1966), motion for rehearing denied, 385
U.S. 1021 (1966) (When no gubernatorial candidate received a majority, the election was
passed to the state legislature pursuant to the state constitution. A three-judge district
court subsequently enjoined the legislature from proceeding. Upon direct appeal pursuant
to section 1253 the three-judge court decision was reversed. A possible standstill was
averted as the Court's decision was handed down only 34 days after the gubernatorial
election).
™See, e.g., Board of Regents v. New Left Educ. Project, 404 U.S. 541 (1972); Mitchell
v. Donovan, 398 U.S. 427 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
7nFor an analysis of the coerciveness and effect of declaratory judgments on subse-
quent pending state criminal prosecutions when the judgment was initially issued while
there was no state prosecution pending compare Steffel v. Thompson, 94 S.Ct. 1209 (1974)
(White, J., concurring), with id. (Rehnquist, J., concurring). In order to avoid a direct
compromise of the purposes of the Declaratory Judgment Act or of the judicial rulings of
the Younger and Samuels cases, the Court should perhaps consider imposing the Younger
and Samuels standards of irrepariable injury to section 2202 injunctions issued subsequent
to declaratory judgments, which were granted when there was no pending state criminal
prosecution.
71For an analysis of this issue in regard to section 2281 see notes 57 & 58 and accompa-
nying text supra.
818 MISSISSIPPI LAW JOURNAL [vol.45
federal judicial review of state prison practices72 provides an excellent example
of the far-reaching effects the instant case might have. In the majority of these
cases the prisoners are challenging the constitutionality of the state statute or
regulation and are seeking declaratory or injunctive relief.73 A three-judge court
would be required to determine those cases in which the "true impact of the
court's judgment [is] injunctive . . . ,"74
The importance of the instant case is that the court manifests a trend to
expand the meaning of the terms of section 2281. In redefining the scope and
applicability of section 2281, the court refuses to compromise the underlying
statutory policy for the sake of judicial efficiency.
Hiram C. Eastland, Jr.
nSee generally Turner, Establishing the Rule of Law in Prisons: A Manual for Prison-
ers' Rights Litigation, 23 Stan. L. Rev. 473 (1971); Recent Developments, 72 Colum. L.
Rev. 1078 (1972).
73See, e.g., McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973); Krause v. Schmidt,
479 F.2d 701 (7th Cir. 1973); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972); Sostre v.
McGinnis, 442 F.2d 178 (2d Cir. 1971); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968).
These cases arise out of similar fact situations to Sands and would probably fall within
the scope of the instant case. Although a detailed study of the relief and the applicability
of the regulations would be required for complete accuracy, at least two circuits seem to
have allowed the lower courts to grant injunctive relief without even mentioning the
necessity of a three-judge court. See Krause v. Schmidt, supra; Sostre v. McGinnis, supra.
74Sands v. Wainwright, 491 F.2d 417, 426 (5th Cir. 1973) (en banc).
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